Divorce and Children with Special Needs: Child Arrangement Orders
Having a child with special needs (SEND) can place additional strain on any relationship, and also any subsequent separation. In the first of two new articles, Managing Director Rita Gupta draws on her own expertise in this area to highlight the additional care, considerations and sensitivity that must be applied in such cases. This first article looks at the complex issues in child arrangements for a child with special needs.
Separation and divorce can be a confusing time for children. Even in the most amicable of splits, they will need to adapt to new circumstances, adopt new routines, and potentially adjust their relationships with parents, friends and families. This can be particularly challenging for SEN children with autism spectrum disorder (ASD), or who have any additional needs.
Separation and the special needs child
Parents with special needs children have very real fears over separation including:
- The logistics of care and how this will be managed on a daily basis as a single parent
- Possible conflicts over important medical decisions and expert interventions, as parents can often have different views on such areas. (Children cannot be assessed without the consent of other parent, for example)
- The impact a divorce might have on all their children, special needs or not
- Worries over the financial implications and long-term financial provision that will need to be made (more on this in part 2 of this article)
For separating parents, the challenge is therefore to create a child-focused outcome that prioritises the child’s emotional and financial stability. It also requires an experienced-based, empathetic and pragmatic approach from the couple’s lawyers, who ideally should be family law specialists as well as divorce specialists.
When SEN children are involved, there can never be a ‘blanket’ approach to divorce; every approach must be bespoke and tailored to the unique requirements and circumstances of the family.
As a specialist in child law cases involving special and additional needs children, I can help you plan how to achieve the best outcome for you and your family. Book your initial 1-hour online consultation with 30 minutes free to discuss your unique situation.
SEN children and Child Arrangement Orders
Ideally, co-parenting a SEN child will require separating parents to be willing to work together, for the welfare of their children. Agreeing child arrangements between you is always preferable to going to court where possible.
A child arrangement agreement can be made between you with the assistance of your family lawyer or through the processes of mediation and/or collaborative law. This approach can be less confrontational, less stressful for all concerned, and quicker too, given the current backlog of court cases due to the pandemic.
However, if you can’t agree between you, or if there are serious welfare issues or risks involved, you can apply for a Child Arrangement Order from the courts. A Child Arrangement Order (CAO) is made under section 8 of the Children Act 1989. This legally-binding and enforceable agreement will set down:
- Who the child will live with, have contact with and spend time with (the resident parent)
- Who else the child can live with, spend time with and have contact with
- Financial arrangements for the care of your children (under Schedule 1 of the Children Act 1989)
In any application for a CAO, a court will always consider the welfare of the child, and will take into consideration the views and feelings of the child as they are able to express them. The court will also consider if both parents are capable of meetings the child’s special needs, jointly and/or separately.
Child Arrangements Orders beyond age 16
It’s important to remember that a CAO can set down living arrangements and/or contact arrangements. If done separately, both types of Orders normally end when the child reaches the age of 16 unless there are exceptional circumstances. Even then, no CAO can be made after a child reaches the age of 18.
Instead, the Court of Protection can act for a mentally incapacitated person and can, if required, define with whom they can have contact. This is usually achieved by a one-off order or the appointment of a health and welfare deputy for the person.
If you are considering separating and have a child or children with special needs, please do contact us at LGFL. Our holistic approach and expert family law advice helps you to assess the range of issues involved. Call us to book an initial consultation – (01189 735521).
SEN children and divorce: stability
A stable home environment is an important part of caring for a SEN / SEND (special educational need or disability) child. Home is more than just a house; it’s often been adapted to meet their requirements for physical care, from bathroom adaptations to major medical installations. For children with autism or ADHD, it’s also a familiar, reassuring environment that helps them to relax and cope with a world that is often confusing and challenging on a daily basis.
This can make the logistics of divorce all the more complex. When their parents get divorced, a special needs child may now have two homes to choose to live in.
- One may be well suited to their needs, the other not so
- One may be near their current school, the other further away
- Medical supplies and/or equipment may have to be duplicated in both homes
- Physical access may need to be improved
- If in-home care is required, it might be split across different health authorities
Special needs children and divorce: familiarity and routine
Familiarity and maintaining a routine is particularly important to ensure SEN children feel the support and love from both parents. If Mum always collects them from school, or Dad always takes them to watch the football, that continuity can make all the difference to a special needs child. It can help overcome the inevitable disruptions to routine of needing to move between houses on a regular basis. Continuity of schooling is important, as school can provide a reassuring, supportive environment, and a regular daily routine (2).
With a sensitive child, special needs or not, as parents you need to focus even more on co-parenting and compromise. For example, your child may feel really traumatised by sleeping in a new home. They may also become upset when meeting a new partner.
In these kind of cases, compromises will need to be made:
- The non-resident parent may have to accept shorter, more frequent contact rather than overnight or sustained visit
- Child arrangements for a special or additional needs child may not be of the more usual type, simply because that is not in the child’s welfare
- Shared care orders may be less likely if the child can’t cope with change
It is particularly important that your child is not exposed to parental conflict or disharmony. May SEN children do not have the capacity to process what is happening to them.
Divorce financial agreements and the SEN child
The second part of this article will cover the financial challenges of divorcing and becoming a single parent or resident parent of your SEN child.
Expert advice on divorce and special needs children
Call us if you’d like to discuss your situation further. We offer a 1-hour online consultation with 30 minutes free, so you don’t need to leave home or arrange extra childcare to access our expert advice.