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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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In a new series of videos, LGFL's Managing Director Rita Gupta and family law barrister Andrew Grime discussed the key issues around separation and divorce for SEN children and their parents.

In the third video, “Why child arrangements need to be child-focussed” Rita and Andrew talked about:

  • The need for bespoke child arrangements for a SEN child
  • The profound effect of changes in living arrangement after separation
  • How the traditional approach of alternate weekends is not child-focussed
  • Alternative approaches to child arrangements

 

 

For those who prefer to read than listen, here’s that discussion in full.

 

Rita Gupta: I think the first area we wanted to discuss are child arrangements and, and how it's a lot more complex if you're dealing with a child with special needs.

 

Andrew Grime: It is indeed. The separation not only changes the child's living and care situation, it also has a real effect on their mental health due to such adjustments.

That’s why it's really important that you have a bespoke, tailored arrangement that works and supports the child. It’s therefore also important to obtain advice from a specialist lawyer who can be proactive, vigilant, inquisitive but also alert to signs of change, particularly where you're dealing with children with special educational needs.

 

Rita Gupta: From my perspective, I think these issues have to be dealt with absolutely from the outset. There's no point in being partway through proceedings or negotiations and then raising these issues.

 

Andrew Grime: Exactly. It’s important to remember what underlies as it were, the spirit of the Children Act. That contact is for the benefit of the child, not the parents. It’s having that bespoke arrangement right at the beginning and all parties recognizing what the real issues are in the case. Again, that’s why it is important to obtain specialist advice.

 

Rita Gupta: It’s quite difficult, isn't it, for a parent to step back and think what's right for the child, or what they want. Particularly in special needs cases, the standard “alternate weekend”, “half the holidays” scenario, it's not really going to work in many cases, is it?

 

Andrew Grime: No. That sort of traditional approach, sadly, doesn't work for children with special educational needs. One still sees cases where recommendations are being made that a child with special educational needs is effectively dragged kicking and screaming to contact. That has a real impact upon their mental health, and it's a situation that is not going to change.

It has to be a bespoke arrangement that works and fits in with what the child's needs are, and not fitting around arrangements for the parent. That can be very difficult because when parties separate. There are two households operating, and substantial changes going on within the carers’ lives, but the priority has to be the welfare of the child. That's what the court is required to look at when making these decisions.

 

Rita Gupta: We always try to negotiate child arrangements either through correspondence or encourage parties to go to mediation. Sadly, what I'm finding in cases with children with special needs is there isn't that awareness. The proposals that are being put forward to us are just basically ignorant of the fact that these children have additional needs. There's a lot of arrangements coming forth about swapping weekends, half of the holidays, going back and forth between households, and it is simply an untenable approach. It's just not child focused.

 

Andrew Grime: This example highlights how legal advisors are not familiar with these issues and are not aware of the effects of these conditions upon children and their specific needs. One can fully understand that often the non-resident parent feels frustrated, or that there's a lack of progress along the traditional route.

It’s important to remember for a child with special educational needs, shorter periods of contact are quality contact, positive contact. That is what is important. Rather than “I have to have half the school holidays”, “I have to have a minimum of three hours”, it's what works for the child.

There may be this feeling that it's a step back, but it's important that shorter periods, possibly less frequent contact, is still positive contact. What we know from research is that these children do remember contacts which are not positive. Non-positive contact do cause them anxiety and in a lot of cases, has a detrimental impact upon their mental health.

 

Rita Gupta: I always say to clients that it's got to be at the child's pace. You're better off going slowly and it being positive and building it up gradually, rather than pushing contact too fast and there being a negative reaction from the child.

It’s very difficult for the non-resident parent to accept that, especially when there's situations around them where they're seeing care arrangements, alternate weekend contact, half the holidays or Wednesday evenings. I do have a great deal of sympathy for that position.

 

Andrew Grime: Shared care is less likely in special educational needs cases because (put simply) the child can't cope. I always say it's important for parents to understand the effect of special educational needs on a child. It’s about:

  • Gaining information and insight into what their child needs
  • Being able to accept that
  • Then, tailoring arrangements around the child

At the end of the day, that will provide the child with the most positive contact, and also for the parent.

 

Rita Gupta: I personally think for equal shared care arrangements, the parties have to have very similar outlooks and parenting styles.
They need very good communication between each other so that the child doesn't suffer. However, that transitioning for a child with any level of special needs, it's near on impossible. They'll be in one household for one week or part of the week and then swapped to another. It's just not familiar for them.

 

Andrew Grime: Quite often when parties separate, the child has its safe space, not only in environment but in so far as care is concerned. That’s no criticism of the non-resident parent at all. It's just that usually one party will have effectively dedicated a huge amount of time and effort in supporting (sometimes referred to as scaffolding) to help the child as much as possible to achieve tasks. For children without special educational needs (these tasks) are very easy, but that is difficult for the non-resident parent to accept.

It does cause problems until you get to that stage where there is a recognition of the importance of a safe place, particularly for children who suffer with autism. They have their primary carer, they have their safe place. The difficulty moving between properties is very real for a child with special educational needs.

Often what one finds is that there's one property where all the needs are met, but where you have a second household, it's not. What’s more, it may not be the non-resident parent's contact where the effect of that contact is actually witnessed. We can have “masking” with SEN children, particularly those who have an autistic spectrum condition. The repercussions, which can be very significant, are only seen once the child returns to their primary placement.

 

Rita Gupta: Often we'll have the non-resident parents say, “Well, I never see that sort of behaviour. Therefore it doesn't exist”. That's very difficult for both parties, but most importantly, the child whose needs aren't being recognised in that situation.
Do you feel that amongst practitioners, there's enough awareness about masking?

 

Andrew Grime: Sadly not, and not just within practitioners. I think it's fair to say that about the courts and the Children and Family Court Advisory and Support Service (Cafcass) too. There are some colleagues who are still not aware of this because it is a difficult set of circumstances.

Children can hide emotions with masking and internalisation. With children with special educational needs, it's really important not to assume that a child is coping with a change in their environment because one doesn't see these overt behaviours that one would typically associate with anxiety and stress.

For example, children can withdraw socially. They can become frozen or numb or wanting to hide in small places, or you see an increase in repetitive behaviours. These are all common features that you see with SEN children.

 

Rita Gupta: A lot of my clients will say “My child comes back from contact and they're lashing out at me”. The child is very angry and frustrated because they're unable to verbalise and process that emotion.

Looking at it from the side of the non-resident parent, it's so difficult for them as well. They just want to have a meaningful, extensive relationship with their child, which often isn't possible.

Sometimes the non-resident parent may feel that they have no input. (I'm not making any assumption as to whether that's the mother or the father here, but more likely than not, it may be the father.) They may feel they have no control and they may feel they're losing their relationship with their child.
What would be your best advice in respect to that?

 

Andrew Grime: It is a very difficult situation for the non-resident parent because they often feel shut out. When you have a child with special educational needs, it may be that

  • They have already had a formal psychological assessment
  • There is special educational needs supports in place through their educational provider
  • There is an education, health and care plan in place

It's important that parents gain as much knowledge of the special needs that their child has, in order to recognise and work with the primary carer.

At the end of the day, what is important, and particularly with children with special educational needs, is an agreed co-parenting plan and a shared parenting approach.
Routines need to be effectively identical because it's all about reducing anxiety and stress for the child. It may be that contact does take longer to progress both in frequency and duration.

Specialist parenting courses for children with ASC diagnosis can be really helpful because it increases a party's knowledge and increases acceptance of the situation they are in. Their child is unique, and they have to tailor their parenting around that. By investing in knowledge, parents will ensure that their child has a positive contact arrangement or living arrangement with their parents, bearing in mind the specific special educational needs that they have.

 

Rita Gupta: I think it's very important that the resident parent engages and involves a non-resident parent in assessments and meetings. It's important that they are involved, and they do have parental responsibility.

 

Andrew Grime: Parental responsibility is very important. Put simply, it's the right of any parent to be consulted about important decisions in their child's upbringing. These sorts of decisions are welfare decisions, health decisions, education, and religion, all the really important decisions that one has to look at as part of a child's upbringing.

It’s important that the non-resident parent is involved and consulted about those decisions because they will have invested in their child's upbringing, despite the fact that the parties themselves have separated. For the non-resident parent, it's important to be involved because they need to know what support their children need.

Assessments are really important because changes seem very difficult for children to cope with. One has to look at transitioning arrangements in particular and how scaffolding can be put into place, to develop the amount of time a child spends with a non-resident parent as much as possible.

They have to be involved in those sorts of decisions. Otherwise, the difficulty is that the non-resident parent is more questioning of the resident parent. One often hears arguments that “They're exaggerating the child's' condition. It's not as bad as that at all”. That's where it's important that there's an agreed approach.

For a psychological report or if not for a psychological report both parties should be involved, and also in the application for an education, health, and care plan assessment.

 

Rita Gupta: We also need to emphasise here is that if the other party has parental responsibility or not, you should be seeking consent and engaging the other party when it comes to any form of assessment for the child.

 

Andrew Grime: That’s vitally important. They have a right to be consulted. They have parental responsibility, and it is important that they're involved in the selection, the decision-making process, and the assessment process itself. It’s all about informing the parent so they feel as though they're having their rights respected and they are involved in the assessment of their child. This also means that acceptance, which is so important in these cases of special educational needs, is more likely. This can then hopefully lead to an agreed way forward, rather than the need of having to approach the courts.

 

Rita Gupta: With the pressure on CAMHS, people are having private assessments. That can lead to one party then being willing potentially to fund half of the report, which are often significant sums of money.

 

Andrew Grime: Indeed. We know the pressures on the system. We're still in the relatively early stages of coming out of the pandemic which has had a real impact upon children with special educational needs. The waiting times for ASC assessments in some areas, for example, is two years plus. The number of pupils in UK schools with special educational needs in 2022 increased by nearly one and a half million. That is a huge figure, and it's the highest recorded rate since 2014.

That’s why parents can't be criticised for seeking private assessments. They want their child to be supported as quickly as possible and having to wait two years is just too long. What’s important that there is an agreed way forward and that both parents are involved in deciding what sort of expert one is looking for, their identity, and indeed their instruction so that they feel fully invested in their child's future.

 

Rita Gupta: If parties can get to a point where there is an element of co-parenting, albeit not in the traditional sense perhaps, then it can be a source of support for the resident parent and the child. Life is uncertain and for the child to have a strong connection to the non-resident parent and have that stability is very important when the child has special needs.

 

Andrew Grime: One of the big concerns I often hear from parents, particularly when separation arises, is, 'What's going to happen?'”

The single routine that both parents were involved in when the parties were together, will change. There are consequences, not necessarily just financial consequences, but in practical support. Would one parent take the child to school in the morning, and the other one pickup, for example, or an afterschool club or something like that.
These are real worries for the parents.

Similarly for the non-resident parent, it's "How is this going to work going forward? I'm not going to be involved, I'm not going to be on hand."

In the middle of it all, you've got the most important person, which is the child themselves.

It’s a very difficult balancing exercise. You have to really think creatively and outside of the box as to how you can tailor a Child Arrangements Order that will balance these competing concerns and special needs.

 

Rita Gupta: As lawyers, we're often writing letters to other parties trying to highlight these concerns and reach Child Arrangements outside of the court process. It's often not possible, so then we're suggesting that they go to mediation. Do you feel that amongst mediators there is enough awareness of these issues? I've had slightly mixed feedback from clients.

 

Andrew Grime: I think my experience would echo yours. There are those who are very invested, are very aware of the issues, they can effectively help in that educational provision of information to bring parties together.

However, you still come across the more traditional approach where they feel, these are young children and discuss alternate weekends and half of all school holidays, which completely ignores the issue. In those circumstances, sadly, mediation is bound to fail.

 

Rita Gupta: That can be quite damaging for the child, particularly in the party's relationship. You are working quite hard to make them look at things in a different way.

 

Andrew Grime: It starts from the premise that there's a fundamental lack of acceptance of the circumstances. There's a fundamental disagreement. One parent will say the child doesn't have a condition and therefore the traditional approach to contact is the way forward. The primary carer who's actually looking after the child on a day-to-day basis is having to manage the huge fallout that there can be from these arrangements.

The difficulty is these sorts of conditions are not the sort of conditions that can just be fixed. It's a question of managing and supporting, and that is key because it's all about helping the child reduce their own internal levels of anxiety caused by their special educational need.

 

Rita Gupta: Presumably, in lots of cases, correspondence hasn't led to arrangements, mediation hasn't worked, and we're then in the court process. From your perspective, how would you highlight the child's individual needs to the court right from the outset?

 

Andrew Grime: It’s very important to set out clearly for the court what the issues are. As lawyers, preparation is key. In these sorts of cases, you are looking at

  • What evidence have we got before we get to the court?
  • Has there been a formal diagnosis?
  • If not, has there been special educational need provision within an educational setting?

And also:

  • Has there been an education health, and care plan assessment?

This plan is a multidisciplinary assessment which covers a number of areas, psychological, education, and social. It can often be a goldmine of information in these sorts of cases, highlighting what the issues are, but in particular highlighting the supports to ensure that the child is able to cope with changes in environment and personnel. If any of that information is available, then you want to highlight that at the very beginning for the court.

At a first hearing, there will be a Cafcass (Court and Family Court Advisory Service) officer. The majority of Cafcass officers I come across these days are well aware of the importance of recognising special educational needs.

The majority of judges who are allocated are also aware of these issues because it's part of their annual training. There are still those who take a somewhat more traditional approach, which is why it's important to make sure that you set out your position very early on with as much information as you've got.

At the case management stage, which will come along next, if there are gaps in the evidence, what do we need to do to identify the best Child Arrangements Order for this child? That’s where a case where you have a child with special educational needs has to be tailored.

You may be looking, for example, at occupational therapy reports or speech and language therapist reports in order to support children with sensory processing. All of which are part and parcel to ensuring that contact is positive and in the best interest of your child.

 

Rita Gupta: What about cases which are before the magistrates? What is your experience about their level of awareness? Or would you say that these cases need to always be dealt with by a judge?

 

Andrew Grime: In the majority of cases, it is preferable that these cases are dealt with by a district judge. Sadly, I've observed at times a total lack of understanding in the family proceedings court of the genuine challenges faced particularly by primary carers of children with special needs.

I've even seen Cafcass officers recommend an autistic child whose whole world is reliant on routine and consistency be quite literally dragged out of their home kicking and screaming for contact with the other parent. One has also seen judges demand primary carers with special needs children secure full-time work.
I'm pleased to say these are getting fewer, but they are still there.

What can often be helpful is if you have a very experienced, knowledgeable Cafcass officer, particularly within the Family Proceedings court. Cafcass officers can have a huge influence over the bench and if they have an in-depth knowledge of the impact of special educational needs on children, that can have a very important part to play in the process.

 

Rita Gupta: Reports and assessments can be quite complex evidence that becomes part of the proceedings, can't they?

 

Andrew Grime: Reports and assessments can be critical documents because they will set out the specific needs of the child. They will also help guide the court in its assessment of what is the right approach to a Child Arrangements Order for this child.

Often I've had psychologists who will question, "Is there really a need to even try this form of contact because we know the child won't be able to cope?" As I've said before, it's got to be shorter periods of contact in a very familiar environment for a child. For example, for a child with autism, even an hour in a room without their primary carer can be a massive step forward.

 

Rita Gupta: You've touched on occupational reports. We've talked about speech and language therapy. There's also then psychological assessments. Can they ever involve the parents?

 

Andrew Grime: They can indeed. For example, psychological assessments can look at a range of issues from mental health to psychological impact of a particular condition. They can also look at the ability of a parent to provide support, and whether there's any work that they need to do enable to make their parenting as good as it can be to support their child.

Also, these reports are very important if you're looking at support that a parent would need in order to care for a child alone, which is often a huge worry, particularly to the primary carer. It’s especially important where a child has special needs or a medical condition and the parent needs to be supported through that.

 

Rita Gupta: If there is a child, for example, with physical disabilities and there are reports available, they really do need to be before the court, don't they? The court needs to have a complete picture of the child's needs as does the Cafcass officer, if they're invited to write a report.

 

Andrew Grime: Often these reports can address a placement for a child with additional needs and to offer a view on the ability of different carers to meet the child's needs. They can also cover as the support that should be put in place or provided for both the child, and any carer.

That’s really important for Cafcass officers who are undertaking Section 7 reports or welfare reports, and also for the court as part of their determination when they have to look at what's in the best interest of the child. It’s the paramancy of the welfare is the most important consideration for the court when dealing with these applications.

 

More questions around separation and the impact on a SEN child?

Come and talk to us. We offer a 1 hour reduced fee consultation to discuss your specific circumstances and concerns. We aim to give you tailored legal advice and information, so you can proceed in the best way for you and your children.

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Earlier in 2023, LGFL's Managing Director Rita Gupta and family law barrister Andrew Grime had an-depth discussion on the emotional, financial and practical complexities of separation and divorce for SEN children and their parents.

Andrew is a specialist family law barrister from Pump Court Chambers who deals with predominantly children work. He has a particular interest in cases which involve children with additional needs, including educational needs, learning disabilities, and social and communication disorders.

Between them, Rita and Andrew shed light on key issues for separating parents and their SEN child. In fact, there was so much information, we have split their discussion over a five-part video series, "Divorce and the SEN child". You can watch them here, or anytime at LGFL's YouTube channel playlist.

 

Divorce and the SEN Child: the videos

Part 1: Family breakdowns and children with special needs

Rita Gupta introduces this new video new series focussing on family separation, divorce, and children with special needs.

 

Part 2: A whole level of emotional complexity

Rita and Andrew discuss the "emotional complexity" of separation and divorce for children with Special Needs.

 

 

Part 3: Why child arrangements need to be child-focussed

Rita and Andrew discuss child arrangements, and explore the profound effect of changes in living arrangement after divorce and separation on a child with Special Educational Needs. They also explain why the traditional approach of alternate weekends is not child-focussed, and suggest alternative approaches.

 

Part 4: Financial arrangement and separating parents with a SEN child

Rita Gupta and Andrew discuss financial arrangements and divorce settlements for separating parents with a child with autism and/or special needs (SEN). They explore issue around two main areas:

  • The family home
  • The resident parent and work

 

Part 5: Spousal and child maintenance agreements

Rita and Andrew discuss divorce spousal and child maintenance agreements for a child with Special Education Needs.

 

Our focus for 2023: separation and SEN children

As outlined in our recent article, in 2023:

“We’ll be writing about the concerns, issues and unique requirements of separating parents with SEN children. We’ll be talking with autism specialists and charities to increase our understanding, and sharing these as podcasts.”

As Andrew says:

“Parental separation can change a child’s living and care situation, but it can also have a real effect on their mental health. As family lawyers we need to be proactive, vigilant, and inquisitive and alert to signs of change.”

Read our article “Divorce and SEN children: our new focus for 2023”

 

Want to learn more?

Check out our popular articles on divorce and children with Special Educational Needs:

 

Concerned about separating and the impact on your SEN child?

Talk to us. We offer a 1 hour reduced fee consultation to discuss your specific circumstances and concerns. We aim to give you tailored legal advice and information, so you can proceed in the best way for you and your children.

- Call us

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- Book your consultation online

Back in 2021 we wrote two articles on Divorce and Children with Special Needs. Little did we know how influential they would be.

Parents of SEN/SEND children know all too well that having a child with special needs can place additional strain on any relationship. If that relationship fractures and parents decide to separate, it can create complex issues around child arrangements, financial settlement and the day-to-day logistics of care.

 

A child-focussed approach for SEN children

From the flood of emails we received after publishing our articles, it became clear that separating parents struggled to find empathetic family lawyers who had the experience and expertise to help them and their children. This is a real issue, as divorce rates are higher amongst those parents with autistic children.

At LGFL, we have always worked towards a child-focused outcome that prioritises the child’s emotional and financial stability. Our combined expertise as both divorce and family lawyers enabled us to help multiple families with SEN children both in local courts and across England and Wales, including a recent case in Newcastle.

SEN children: the stats

In the UK, the number of children in school with special educational needs in 2022 increased to almost 1.5million, up by 77,000 from 2021. That represents 16.5% of all school age pupils.

The awareness of recognition and understanding of children’s additional needs has also grown, encompassing:

  • Special educational needs
  • Learning disabilities
  • Social and communication disorders

In the year up to March 2022, the number of people with an open referral for suspect ASD was just over 103,000, an increase of 39% on the same period to end of March 2021.

A unique partnership

To further help families with SEND children experiencing divorce, we are collaborating with J. Andrew Grime, a specialist barrister in child and care law at Pump Court Chambers.

Working with Andrew has already enhanced our knowledge and understanding of SEND specific procedures, including:

  • Education Health and Care Needs Assessments (EHCN)
  • CAMHS referrals
  • Psychological reports

Andrew has also given us in-depth specialist training in specific case child law including the use of expert witnesses.

Andrew will be our “go to” barrister for cases involving SEN children in 2023, enabling us to form a dynamic, informed and effective team to help parents of SEND children - and the children themselves.

As Andrew says:

“Parental separation can change a child’s living and care situation, but it can also have a real effect on their mental health. As family lawyers we need to be proactive, vigilant, and inquisitive and alert to signs of change.”

Listen to Andrew in conversation with Rita in a new series of videos “Divorce and the SEN child”. View anytime at our LGFL YouTube channel.

Or read our previous articles on SEN

 

Watch this space

Over the next few months, we’ll be writing about the concerns, issues and unique requirements of separating parents with SEN children. We’ll be talking with autism specialists and charities to increase our understanding, and sharing these as podcasts.

We’ll also be learning from real families about the daily challenges they face, to give us a more holistic understanding of SEND issues in divorce, including finances, care logistics, and the diversity of needs and requirements for children across the autism spectrum, both diagnosed and suspected. This will in turn will help us help more families separate and divorce with less stress, less worry and keeping the needs of their children as our primary focus.

 

Talk to us

The prospect of divorce can be both daunting and, to be frank, scary. At LGFL, we offer a 1 hour reduced fee consultation to discuss your specific circumstances and concerns. Many clients find that having 60 minutes to talk to one of our Directors gives them a wealth of information, understanding and confidence to proceed in the best way for them and their children.

- Call us

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- Book your consultation online

In our third article on separation and the SEN child, Director Anne Leiper looks at what need to be taken into consideration when working towards your financial settlement.

Everyday financial pressures are never far from the minds of parents of SEN children. These pressures can contribute to mounting tensions in the relationship, and any subsequent decision to separate.

 

Financial considerations for your SEN child

Any financial settlement you and your ex-partner agree on should ensure that your SEN child is fully provided for. You will need to consider a whole host of practical, logistical and long-term care issues, including:

1. Who your child will live with (the resident parent)

2. Where they will live (family home or new property)

3. How you will co-parent your child (two households)

4. Specialist transport requirements

5. Benefits and other payments available

6. Long-term care provision into adulthood and beyond

Let’s look at these in more detail.

 

1. Who will be the resident parent?

This is a key question, as being the resident parent will inevitably involve much of the everyday care for your SEN child. This involves both a financial shift and a practical one too, as there is one less person to help with everyday family tasks such as taking other children to school, shopping, cleaning and much more. Your financial settlement should consider the possible need for financing extra help for the resident parent, such as a cleaner, gardener or taxis to school.

Caring for an SEN child takes time, so you may not be able to work full time, or only be able to earn a limited income. Even with the legal requirement for employers to offer parents with a disabled child a flexible working pattern, as a single parent, any time-intensive care can make working life difficult.

If as the resident parent you decide to employ a carer, this also will have an impact on your earning capacity. The current shortage of healthcare professionals may also restrict the amount of specialist carers and/or support workers available, which in turn may restrict the number of hours you can work.

 

2. Where will your child live?

As we mentioned in our previous article, for parents with SEN children, the family home is more than just a house.

  • It provides a secure and familiar environment for children with special needs
  • It may be adapted to suit the child’s access/mobility needs, including adapted access, bathrooms, ground floor bedrooms, etc
  • There might also have specially installed / ‘built-in’ medical equipment such as hoists, oxygen supplies, etc.

The family home may also be more practical in that it is close to the child’s current school, their GP, care and health workers, support team, and of course, their friends.

Any financial settlement should therefore recognise the additional ‘value’ of the family home as the best possible accommodation for a SEN child. What’s more, should the house be sold, the considerable costs of these modifications would probably not be reflected in its market value.

 

3. Co-parenting a SEN child

Co-parenting arrangements may (and indeed should) involve your child spending time at the non-resident parent’s home. This can be challenging if the non-resident parent home doesn’t replicate the facilities at the resident parent’s / family home. So, an allowance for the need to adapt or upgrade future homes should be reflected in any financial agreement.

Your financial settlement should also consider the ‘hidden’ costs in running two homes. An autistic or SEN child may need the comfort and reassurance of familiar possessions, clothes, bedtime routines, particular foods, etc.

The agreement should also include provision for respite care for the resident parent, and extra emergency care should one parent contract COVID or be required to self-isolate, for example.

4. Specialist transport requirements

Your SEN child may require adapted transport for their wheelchair or other mobility requirements. If the resident parent keeps the family’s adapted vehicle, for example, the non-resident may require one of their own, or have the need for specialist disabled taxis taken into consideration in the financial settlement.

 

5. State benefits and other sources of financial help

There are a range of benefits and tax credits available to help those caring for a SEN child including:

  • Disability Living allowance (DLA)
  • Carer's Allowance
  • Universal Credit
  • Income Support

Any changes in non-earned income after you separate should be accounted for in your divorce financial agreement. It’s important to note that the benefits and support for SEN children changes at age 18, and they can opt to claim benefits in their own right. Their Education, Health and Care (EHC) assessment plan will also change.

 

6. Long-term care provision

Assessing the potential financial impact of long-term care for a SEN child can be difficult. The cost calculation will be dependent on when it is anticipated that the child will reach the age of independence, and if so, when they might:

  • transition to adult services
  • go to a residential school
  • move into supported living / specialist accommodation

As a demographic, SEN children have a lower earning potential and many remain living at home for longer. Sadly, the availability of supported living schemes, residential care home or shared lives schemes is limited, so SEN young adults often need to live at home longer. This should be reflected in the divorce financial settlement so that one parent is not significantly disadvantaged in the future.

One area of potential dispute can arise when one parent thinks that a residential placement would be best for their child, but the other does not.

A court will always rule in the best interests of a child when considering child arrangements, and therefore will have to agree with one party on this issue. This situation has considerable financial implications, especially if the full cost of residential care would not be met by your local authority under the EHC.

If you need to go to court to dispute a financial settlement, it is crucial that these issues are addressed at an early stage. It’s also important that the court is equipped with proper evidence in support of your case. Taking legal advice early on will give you the opportunity to discuss your options, and assemble and required information in good time. Call us to discuss your situation.

 

Financial settlements without going to court

With so involved, any financial agreement is going to need time and careful consideration. It also needs to be done in a timely fashion so your child can enjoy continuity of care.

At LGFL, we have helped separating parents reach financial agreements through a process of mediation and collaborative law. Mediation involves you both working with a mediator to come to an agreement between you that works for all the family. This can be through mediated in-person meetings, or in separate locations with your legal team to hand.

This type of ‘hybrid mediation’ avoids face-to-face confrontations, and can even take place online via video conferencing. For more information,

 

Separate with less stress

If you’d like to discuss your situation, contact us to book your initial 1-hour online consultation with 30 minutes free. Our online consultations are popular with carer-parents as you don’t need to leave home or arrange extra childcare to access our expert advice.

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