Financial arrangements for parents of SEN children
In our ground-breaking video series, LGFL's Managing Director Rita Gupta and family law barrister Andrew Grime discussed the impact of separation and divorce for SEN children and their parents.
In the fourth video, “Financial arrangements for parents of SEN children", Rita and Andrew talk about financial arrangements for separating parents, with particular focus on:
1. The house / matrimonial home
2. The resident parent ability to work
For those who prefer to read than listen, here’s that discussion in full.
Rita Gupta: Let’s talk about financial arrangements and settlements when you've got a child with special needs because it's very different, isn't it?
Andrew Grime: Indeed. The court assesses any application under the Matrimonial Causes Act Section 25, which is a discretionary based approach.
In these sorts of cases, you really have to be very creative, and think outside of the box in terms of the supports and costs, and the impact that separation has, particularly where you have a child with special educational needs.
Rita Gupta: The three main areas I'd like to talk about are:
1. The house / matrimonial home
2. The resident parent working (which is often something that's challenged)
3. Maintenance, and financial support, on a longstanding basis (in our final video)
THE FAMILY HOME
Rita Gupta: So, first of all the matrimonial home. As we know, courts are generally adopting a process whereby if they can house both parties, they will. With the popularity of Right Move, it's very easy to check what the level of somebody's housing needs are. But that ‘bog standard’ approach of selling up and dividing the equity, it's not always the right thing. It generally isn't the right thing when you have a child with special needs, is it?
Andrew Grime: In these circumstances, the first consideration has to be the welfare of any minor, that’s any child under the age of 18. Looking at the family home, the first question is obviously the importance of the family home to the child's physical, emotional, and educational welfare.
So, what would the impact of that change to that family home be on the child? When you are dealing with these sorts of cases, the family home is more than a house. It may have been adapted, particularly if you have children with ADHD and children with diagnoses on the autistic spectrum condition.
It's their safe place! It helps them relax. It helps them cope with the world around them, which can be very confusing, very stressful and cause real anxiety. These (considerations) may not to be relevant in the more traditional approach where you don't have a child with special educational needs, but are highly relevant in these complex cases.
Rita Gupta: And that transitioning (includes) not only transitioning to living with the other parent or spending time with the other parent, but going through the upheaval of a move when their family unit has broken down. That just could be catastrophic couldn't it?
Andrew Grime: Exactly. That’s why I say it's the whole process of separation. The child is having to deal with a huge change in its home environment in any event, by means of the separation of their parents.
Also, the changes to the roles which is (also) a huge change to a routine. For children with special education needs, a very minor change to routine can have a huge impact. That's where courts have to be very careful and do a very detailed and thorough assessment of all the individual needs in these complex cases involving special educational needs.
Rita Gupta: In your experience, do you think the courts are factoring in this consideration when particularly they're looking at the family home? Or is there still this push towards a sale or a division, and let's try and house both parties?
Andrew Grime: Courts are directed to try and achieve what we call a clean break, if at all possible. They try and house both parties if at all possible.
But that's why I think it's really important that you have specialist lawyers on board from the very beginning to highlight these issues, and make sure that the evidence is there to support these issues. If the evidence is in front of the judge, (then) they are open.
The statute provides that the first consideration has to be the welfare of any minor, and judges are receptive to these submissions. It’s important that they're set out clearly at the very beginning of proceedings, from the first directions appointment. Then you ensure that all the necessary evidence is gathered to support the case.
Rita Gupta: If there's no independent evidence, nobody's going to necessarily believe, or they may lead to the arguments that one parent is exaggerating the needs. I usually include a 'for me' stage in quite a lot of detail if the child has specific needs / a diagnosis. It needs to be there right from the outset in my view.
Andrew Grime: Indeed it does. That may be a psychological diagnosis or an educational health and care plan for this child. That can also be a worry. If a house is going to be sold, what's the impact of a change of location or a change of area going to be?
Where you have a child who's in receipt of an EHCP provision, or for example, a specialist educational setting, is the sale of the family home desirable, because of its proximity to those supports?
Or is a deferred sale more appropriate? If so, you've got to really think about bespoke triggers for any future sale. So, for example, it could be dependent upon when it's anticipated the child / young person, will
- Enter a residential school, or
- Achieve independence, or
- Transition through to adult services, or
- Enter support living provision.
These are all the things that you've got to have in your mind when you are dealing with these cases.
Rita Gupta: There is this wide judicial discretion as well, which means that they can apply the Section 25 criteria, but the evidence has to be before the court. It’s hard to expect judges to make these decisions if there's a dispute between the parties as to the extent of a child's needs.
Andrew Grime: Indeed. If a judge is looking at a sale, then the next questions are:
- What are the housing need and adaptations of new properties?
- How can you ensure that that transition works in the best interest of the child?
Lowering the levels of stress for the child so that the anxiety and confusion and day-to-day difficulties they have in understanding the world around them can be mitigated as much as possible. From our perspective as a lawyer, it's supporting their primary carer through that as well, and helping the non-resident parent appreciate these individual difficulties.
Rita Gupta: Do you think there's a stronger argument therefore for the departure from equality in favour of the resident parent?
Andrew Grime: In my experience, it's far more common. For example in a lot of cases that I become involved in, you are looking at deferred sales rather than immediate sales, This is ensuring that that first consideration is the welfare of the child, but that has to be based on proper evidence.
There can be cases where if you are acting for the non-resident parent, who is keen for a sale, but is it absolutely impossible, or is it something which can be transitioned to?
Again, this is where expert reports can be very useful from occupational therapists or psychologists.
Rita Gupta: It can be very difficult for the non-resident parent who is taking the view that “I'd like a home. I'd like to have a safe space that they can come to”. To be locked out of any equity or being able to rehouse themselves for sometimes 10 years or beyond, it’s very difficult for them?
Andrew Grime: It's hugely difficult, and at a very difficult, stressful, and anxious time for them as well. They have to look at: "How can I carve out a future for myself?" They also want to support the family as well, and they want to support their children, but they want to share in that as much as possible.
In some cases it may be possible with the right support, and with a clear transition. But sadly, in other cases it's just not possible.
Rita Gupta: There are grants that the parties have obtained for adaptations but there's time limits on those, so they need to maybe wait it out.
If there has been changes to the property, these would have to be done to a new property also. That would all have to be a capital cost to be considered.
Andrew Grime: Absolutely. If you are looking at housing needs and adaptations, you've got to think about physical access.
- Is it suited to the needs of the child?
- Is in-home care required?
- Do you need a slightly larger property in order to facilitate that in-home care?
- Is there a need for respite?
These are the sorts of additional costs that you have to have a look at.
Grants are important because it's not something that we see in a ‘traditional’ case. It highlights the importance of having lawyers who are aware of the individual characteristics of these sorts of cases. With disability facilities grants or other financial supports, for example, you've got to be careful. Can they be ascertained if there are (any) payback provision? That may have to be included and considered as part of any financial settlement.
These are becoming more and more common due to limited budgets. You are seeing more often clawback provisions, which need to be taken into account when considering the optimum time for the sale of a family home, if:
- The parties are already in receipt of a grant and,
- Works have been undertaken to the property.
Rita Gupta: Many of my clients have talked about the amount of time and effort that they spend in sort of getting special educational need support, or they have doctors or other experts. To move location is complicated, isn't it? That is a real consideration for many of our clients.
THE RESIDENT PARENT'S ABILITY TO WORK
Rita Gupta: I now wanted to move on to the resident parent's ability to work. Many of my clients will say “It's just not possible for me to work, or I have to work on the very lower end of part-time”.
How do the courts deal with that?
Andrew Grime: Again, it's all dependent up upon ensuring that they have the information in front of them. The difficulty with these sorts of cases is making sure that the judge has got the evidence and the knowledge of the individual needs of this child.
If one has a child who has a diagnosis of autism, they may not be able to be placed into a normal school environment. You may be looking at home schooling. That will have a huge impact upon a carer's ability to exercise an earning capacity, not just in the short term, but the medium term as well.
Or even if you have a child who is within an educational setting, they may not be able to cope with, for example, afterschool clubs or breakfast clubs. This will also have a significant impact upon a primary carer's ability to exercise their earning capacity.
Rita Gupta: Absolutely! It massively restricts the hours, doesn't it? One of the issues, for example, with autism is the noise and activity around. So to go into a very boisterous afterschool club isn't simply an option, is it?
Andrew Grime: No, or to be able to do that without the support of their primary carer.
The difficulty with that is that obviously that carer has to be invested in that, to support the child. This again has a detrimental impact upon their earning capacity.
Rita Gupta: A lot of my clients say that just actually the management of the expert’s report, the appointments, it’s almost a full-time job.
A client told me that they actually had to have a salary reduction because they took so much time off to attend appointments over a particular month for their child who had special needs. You have to have quite a flexible working environment to be able to attend those experts meetings, don't you?
Andrew Grime: They have to be hugely flexible. Also the difficulty is that, these parents as the primary carers are, quite rightly, so heavily invested in their child's needs and their support. They will need to be juggling, irrespective of the fact that they're dealing with a separation and break down in their relationship. They're still having to manage what's going to happen as a result of that separation.
It may be that you've got occupational therapy reports, speech and language appointments and sensory appointments for the child. They may be having special educational input as well, which the parent is part of, and that has to be managed on a day-to-day basis.
The difficulty is that these children need bespoke support, which is vital to their welfare. Unfortunately, that does have a very significant impact upon their (primary carer’s) ability to exercise an earning capacity because of that additional time they have to spend caring for or home educating their child.
Rita Gupta: It's very difficult for the non-resident parent, why may say, “Well, my job doesn't give me that flexibility. I have to work in quite a high-pressure environment. I can't take all this time off”. So sometimes it's perhaps an unfair criticism to say they're not engaged, but those meetings can be onerous when they're in the middle of a working day.
Andrew Grime: It’s trying to strike that balance of having some flexibility and that they maintain their employment, in order to maintain the financial welfare of the family as a unit. There has to be an appreciation on both sides of the difficulties which both parents will face during separation.
Rita Gupta: The non-resident parent, may see that the family home won't be sold for many years. The earning capacity and mortgage borrowing capacity, (which obviously is another consideration), is not there. They may feel as though they've got a bit of a tough deal here.
Andrew Grime: Well, they may, but it's important that they feel invested in the process. It’s important that if you need an expert looking at these issues, that you get that expert advice. I often find it's when parents acquire the knowledge, and that can then lead to an acceptance.
Whilst you may be looking at bespoke triggers for the sale of a home at a later date, one could in those circumstances look at an adjustment of capital because of that additional delay.
These are all the sorts of things that need to be thought of as part and parcel. It may restrict the non-resident parent's ability to rehouse in the short to medium term. However, they may get a slightly better financial settlement in the longer term, whilst also accepting the need of the specific and individual supports that their child needs during their minority.
Rita Gupta: Needs evolve, don't they? We don't always have to know that they're going to evolve for the worst. It may be that with early provision and early support that, the child could be more settled in a few years’ time. It doesn't have to be that it's after age 18, for example.
Andrew Grime: Precisely. It may be that by investing in the support and having a more measured transition plan that in the medium to long term, that lessens. In fact, it is supporting the child in being able to manage their feelings, their emotions, and their anxiety.
At the end of the day, that's one of the key things that one needs in these sorts of cases. It's helping the child being able to process and to live within the world that they find so confusing, without support and without transitions.
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