Why child arrangements need to be child-focussed

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.

Why child arrangements need to be child-focussed

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