• 07 Nov 2024
• •
• 3 min read

Navigating separation involving children with Special Educational Needs (SEN)

As the number of children requiring Special Educational Needs (SEN) support rises, 13.6% in 2024 (with 4.8% holding an Education, Health and Care Plan (ECHP)), so too does the number of families dealing with separation in these circumstances. This can be an incredibly challenging time for parents, with the added responsibilities of caring for a child with SEN intensifying the difficulties that arise during family breakdowns.

Considering SEN children in divorce and financial settlements

When it comes to divorce or separation, the financial implications of raising a child with SEN cannot be overlooked. The family court considers various factors, but the welfare of any minor child is a priority. In cases involving children with SEN, additional financial support may be required for specialised education, therapy and medical care. This can lead to an increased assessment of the primary carer’s needs.  

Key considerations include:

• Higher costs of raising a child with SEN: Children with SEN often require additional financial support for specialised education, therapy, medical care and other related expenses. The court will take this into consideration to ensure that all costs are factored in.
• Reduced earning capacity: The primary carer of a child with additional needs may have limited earning potential due to enhanced parenting responsibilities. Whilst the family court will usually expect both parties to maximise their earning potential, they have a discretionary jurisdiction and will consider what this means for each family on a case-by-case basis.
• Housing needs: In some cases, the family home may need to be retained to provide stability or accommodate property adaptations which have been made to support the child’s needs and development.

For parents of children with SEN, concerns often arise about the court’s ‘cut-off’ for prioritising the child’s needs after the age of 18. In some situations, lifelong care and support may be necessary and the court will consider this, potentially setting up trusts or other financial arrangement to secure the child’s future needs.

Financial provision for unmarried parents of children with SEN

If you’re unmarried and facing separation, you can apply for financial provision under Schedule One of the Children Act. This can cover housing, educational costs and additional maintenance if the paying parent’s income exceeds the Child Maintenance Service cap.

Child arrangements for children with SEN

Child arrangements following separation can be more complex when a child has SEN. If parents cannot agree, the court will make decisions with the child’s welfare as the paramount consideration. The physical, emotional and educational needs of a child with SEN often require a more tailored approach, and the court may favour arrangements that minimise disruption and provide continuity of care.

Disagreements over schooling can be particularly challenging, with parents needing to decide whether mainstream or specialist education is in the child’s best interests. In these cases, a Specific Issue Order may be sought to allow the court to make the decision. 

Concluding comments

Situations involving a child with SEN require a specialised, empathetic approach. The family court does have the flexibility to adjust financial and child arrangements to account for a child’s additional needs. However, the court can only work with the assets and resources available to the family and must ensure that both parents are also left with sufficient resources to meet their needs. 

There has been much debate about whether current legislation remains fit for purpose, with many advocating for the family court’s discretionary nature to remain in place to ensure that the needs of vulnerable children are met.

If you are navigating separation with a child with special educational needs, seeking specialist legal advice is crucial to understanding your options and ensuring that the child’s welfare remains the focus throughout the process.

Contact our family law team today for expert guidance on SEN related family law issues.