HHJ Willans. Final hearing concerning the enforcement of a school fees order.

Introduction

The case of A v H (Variation of School Fees Order) [2024] EWFC 254 (B) was heard before HHJ Willans in the Family Court at West London. It concerned an application for enforcement of a school fees order and a cross-application by the respondent for its variation.

Background

The parties, both litigants in person (the applicant assisted by a McKenzie Friend), had a consent order dated 3 November 2020, requiring the respondent to fund the private school fees for their three children (J, H, and M) until the completion of secondary education. The respondent’s prior attempt to vary the order in January 2022, citing financial difficulties due to the COVID-19 pandemic, had been dismissed.

Following persistent non-compliance, the applicant issued enforcement proceedings on 23 April 2024. In response, the respondent again applied to vary the order.

Compromise and the outstanding issue

A partial compromise was reached whereby, from the autumn term 2024, the applicant would assume responsibility for the school fees, with the respondent agreeing to reimburse half the amount on the sale of his business shares.

The remaining dispute concerned arrears incurred prior to the autumn term 2024, specifically the outstanding fees for J. It was agreed that the respondent bore the liability for these fees in their entirety; however there was a dispute as to how these fees should be paid given they required settlement prior to September 2024 if J was to continue being educated at her school.

Parties’ assets

The respondent asserted that he had no meaningful savings, and his payment of the school fees was contingent on discretionary bonuses (c.£60,000 net) from the business. The respondent said he was unable to pay the school fees as, due to an administrative error, he was served with an invoice late, whereby he had already spent his bonus. Later, in early 2024, he was removed from his business by his fellow directors.

He had received shares expected to yield £1 million gross in 2026, albeit the shares were neither liquid nor realisable. He was also due to receive two compromise payments in July 2024 (£32,500) and November 2024 (£32,500). The respondent also owned a boat valued at £16,000.

The respondent accepted his liability for the school fees, agreeing in evidence that the arrears (paid or otherwise) should be paid by him; however, he did not have the liquid capital to do so.

The applicant had an investment fund of approximately £341,000, albeit she owed £220,000 to her father, representing sums lent to her to assist with previous litigation.

The law

Variation of an order is considered under s 31 of the Matrimonial Causes Act 1973. This section allows the court to vary, discharge, or suspend any provision. Under s 31(7), the court must have regard to:

• the welfare of any child of the family under 18;
• all circumstances of the case;
• changes in s 25 factors relevant at the original hearing; and
• whether an intermediate or phased clean break is appropriate.

DDJ Willan made clear that although the language suggests a de novo assessment, the proper treatment of this section is that the court has the discretion to structure the hearing as it sees fit, including performing a narrow review of any changes in circumstances.

Judicial analysis

HHJ Willans was highly critical of the respondent’s handling of his financial responsibilities. The court found that, as of November 2022, the respondent had sufficient means to pay the fees but had prioritised other expenditure. The explanation for J’s outstanding fees – that the school had failed to invoice him – was dismissed as ‘particularly poor’. A party’s financial obligations under a court order require active compliance rather than passive reliance.

In contrast, the applicant was deemed to have acted reasonably and proactively in trying to secure the children’s education. HHJ Willans accepted the applicant’s evidence that, notwithstanding any formal loan agreement, she felt morally obliged to repay her father using the money from her investment fund.

Decision

Arrears for J’s school fees

The applicant, in the first instance, was to settle the £44,130 arrears for J’s school fees. She had the funds to do so, and although she was not liable under the consent order, this was deemed necessary to secure J’s schooling.

To ensure the applicant is repaid, HHJ Willan ordered the following:

1. The respondent to sell his boat by the end of August 2024, with the net proceeds directed towards J’s arrears. If the boat remained unsold by this deadline, the price was to be reduced to £10,000.
2. The respondent was required to pay £3,792 pcm from August 2024–November 2024 (totalling £21,376).
3. To safeguard these payments, an order was directed to the business restricting payment to the respondent of the final tranche of his compensation payment due in November 2024. The sum payable to the respondent would be reduced by the difference of £44,130 and the amount paid to the applicant. The balance was then to be paid to the applicant.
4. The applicant was granted permission to disclose the order to the business, and the business was granted liberty to apply to vary or discharge this order.

Payment of future school fees

The judge approved the agreement for future school fees, whereby the applicant settles the fees when due, and the respondent will reimburse half upon the sale of the business shares. To fortify this obligation, the respondent provided an irrevocable instruction to the chairman of the business, effectively granting the applicant a charge over the net value of the shares after taxes and directors’ loans.

Conclusion

The judgment in A v H highlights the court’s approach to non-compliance with school fees orders, particularly where a party has the means to meet their obligations but fails to prioritise them. It serves as a reminder that courts will take proactive and creative enforcement measures to ensure compliance with financial remedies orders.