The increase in popularity of private education in recent years has resulted in an increase in the number of claims by schools for the payment of those fees.

This is caused, in the main, by parents removing children from school prematurely. If you search the internet on the question of school fees, you will find one thing in common – that contracts for private schooling almost invariably contain a clause saying that parents must give one full term’s notice before removing their child, or pay a term’s fees instead.

This is perfectly lawful. It is also standard practice to the extent that, even if the contract does not contain such a clause, it would not be unreasonable for the school to rely on the principle.

The principle was held up to the light and firmly approved by none other than that great jurist Lord Denning in a case dating back almost 35 years, which remains good law today. It concerned a local authority that had placed two children in its care in a private special school. After the headmaster was charged with indecency, the local authority removed the children without notice. Later, after the headmaster was cleared of the charges, the authority returned to children to the school but refused to pay the fees for the term after the date of removal. The court ruled that it was liable to pay the fees.

The case gave Lord Denning an opportunity to explain what he saw as standard practice in private education: “It is an understood thing in all schools that if a parent wishes to withdraw a boy, he can do so; but if he does so he has either to give a term’s notice or to pay a term’s fee in lieu of notice. This is usage well known throughout the educational world. So well known that we can take notice of it ourselves.”

Frequently claims for fees are met with defences complaining about some aspect of the child’s schooling – underachievement, the child’s general unhappiness, poor teaching and so on. Quite apart from the difficulty of proving such allegations, they are almost certainly not sufficient to offset the claim. Lord Denning, again:

“If the parent wishes to avoid this liability, he must show that the school has been guilty of a breach going to the root of the contract, such as to entitle the parent to treat himself discharged from any further obligation.”

In other words, something fundamental must have gone wrong to justify avoidance of a term’s notice. This probably rules out underachievement, poor schooling and many other niggling matters. However, if serious bullying of the child is brought to the attention of the school and they do nothing to prevent it, or the school fails to properly diagnose that a child is suffering from a serious educational deficiency, such a dyslexia, and fails to take proper steps to deal with this, it might be argued that these are fundamental matters that ought to be taken into account.

But be warned. Parents should be careful about overplaying what might otherwise be a weak hand. In a more recent case, in 2004, the court said that “it was not right to use underperformance by a child as the basis for generalised claims in negligence”.

School is school after all. It may not be all sweetness and light. There are many who would argue that schooldays are not the happiest of our lives, nor are they intended to be. It would be better to consider the advice handed down by Lord Denning:

“After a boy goes to school he may be very unhappy. The school may not suit him. Other boys may be unkind to him. The staff may change for the worse, and so forth. The parent may be quite reasonable in withdrawing the boy; but he must still give a term’s notice or pay a term’s fee in lieu of notice”.

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