Info & Advice

My child has special educational needs. Will the court take that into account when dealing with our family law matter?

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Cases involving children with special educational needs (‘SEN’) or long-term medical issues present a set of unique challenges and considerations for both the court and also the legal practitioners working in this area.

Ensuring the best interests of children with special needs amidst familial disputes requires a nuanced understanding of both legal frameworks and the specific needs of these vulnerable children.

There are special considerations which clients, solicitors and the court must bear in mind when navigating family law matters involving children with SEN or long-term medical conditions in England.

I have no understanding of family law. Is there a special legal framework for dealing with matters involving children with special needs or those with medical issues?

In England & Wales all family law matters concerning children are governed by the Children Act 1989. The paramount consideration in any decision concerning a child is their welfare. This principle is enshrined in Section 1 of the Act, emphasising the importance of safeguarding the child’s physical, emotional, and educational well-being.

However, when dealing with children with SEN or long-term medical issues, additional legislation and guidelines come into play. The Equality Act 2010 prohibits discrimination against individuals with disabilities, including children, in various aspects of life, including education and healthcare.

Moreover, the Special Educational Needs and Disability (SEND) Code of Practice provides a framework for identifying and meeting the needs of children with SEN, ensuring they receive appropriate support and accommodations.

That sounds very complex! How can I decipher so much legalese?

You should consider instructing a specialist solicitor. Legal practitioners advising on family law matters involving children with SEN or long-term medical issues must comprehend the intersection between family law and disability rights legislation. They must be able to recognise that decisions regarding residence, and contact arrangements will significantly impact the child’s access to necessary support services and accommodations.

A solicitor specialising in this area will be able to assist the court in considering how any proposed arrangements will affect the child’s ability to access specialised education or medical care. Moreover, appropriately specialised solicitors will be able to advocate for inclusion of provisions in court orders that address your child’s unique needs, such as ensuring continuity of therapy or access to assistive technologies.

What is the ‘Best Interests Principle’?

The Best Interests Principle, as expressed in the Children Act 1989, remains the cornerstone of decision-making in family law cases involving children. When representing clients in such matters, specialist solicitors will prioritise advocating for arrangements that promote the child’s overall well-being, specifically taking into account their SEN or medical condition and raising any related issues with the court.

This may involve consultation with other relevant professionals, such as educational psychologists, healthcare providers, or social workers, to assess the child’s needs comprehensively. Solicitors should also collaborate with their clients to gather evidence demonstrating how proposed arrangements align with the child’s best interests, considering factors such as their educational progress, medical stability, and emotional welfare.

How can I best ensure my child’s special needs are being prioritised during proceedings?

  1. Open and effective communication with your legal representative regarding your child’s special needs is crucial. This would normally include providing your solicitor with detailed information about your child’s condition, medical history, education requirements, and any relevant assessments or reports. This will help your solicitor understand the child’s unique circumstances which in turn will ensure that the child’s voice is heard and considered throughout the legal process.


  1. It is very important that you chose a legal specialist who has experience of dealing with cases concerning children with similar needs / conditions.


  1. If you have not already, you will need to consider seeking advice from healthcare professionals, educational psychologists and / therapists. Your solicitor should be able to guide you and help to find suitable experts.


  1. You should gather and keep an organised record of as much relevant documentation as possible relating to your child’s special needs. This might include medical records, any education assessments, reports from any specialists and correspondence with any relevant professionals. Your solicitor will need to see this when you instruct them but also this information will need to be made available to the court and any other involved parties.


  1. You will need to consider whether an expert report might be appropriate in your case. In some cases clients request that the court orders an expert report to assess the child’s special needs and to make recommendations for suitable arrangements. If you instruct a solicitor they should guide and advise you in relation to this element.


  1. You will need to advocate for your child’s voice to be heard particularly if the child is old enough and mature enough to express their wishes and preferences. Your solicitor would be able to help facilitate your child’s participation in the process and to ensure their views are taken into account.


  1. Once court orders are issued, you should stay on top of things and ensure that all parties involved comply with the provisions relating to the child’s special needs. This may involve monitoring the implementation of support services, educational provisions, or medical arrangements outlined in the court order and taking appropriate action if there are any breaches or issues. If you instruct a solicitor they can assist this regard so long as you alert them immediately to any breach.


  1. You should be proactive in regularly reviewing and, if necessary, adjusting arrangements to accommodate changes in your child’s needs or circumstances. This may involve seeking modifications to existing court orders or agreements to ensure that they remain in your child’s best interests. Again, this is something you can discuss with your solicitor if you instruct one.


By taking these proactive steps and working closely with the involved professionals, you can ensure that your child’s special needs are appropriately factored into family law proceedings. This will lead to an outcome which promotes your child’s well-being and development.

How can I ensure that my child’s voice is heard and considered throughout the legal process?

Effective communication is crucial in representing children with SEN or long-term medical issues in family law proceedings. You or your chosen solicitor must ensure that the child’s voice is heard and considered throughout the legal process, in accordance with their age and understanding.

In some cases, this may involve appointing a guardian ad litem or a solicitor to represent your child’s interests independently. These professionals can provide valuable insights into a child’s preferences and needs, helping the court make informed decisions that reflect their best interests.

Furthermore, you or your solicitor will need to advocate for the provision of appropriate support services and accommodations to enable the child to participate meaningfully in legal proceedings. This may include arranging for communication aids, interpreters, or specialist support workers to facilitate the child’s engagement with the process.

Will the Court care about additional educational support my child needs because of their special needs?

Children with SEN are entitled to receive appropriate educational provision tailored to their individual needs. You or your solicitor should advocate for arrangements that safeguard your child’s right to access quality education, consistent with their abilities and requirements.

This may involve negotiating with local authorities to secure placement in specialist schools or obtaining additional support within mainstream educational settings. You or your solicitor should also be vigilant in ensuring that educational provisions outlined in court orders are implemented effectively, in order that your child’s progress is monitored and that any concerns can be addresses as and when they arise.

What will happen as my child grows older and their needs change?

Transitioning between different stages of education or healthcare provision can be particularly challenging for children with SEN or long-term medical issues. You or your solicitor should incorporate robust transition planning into advocacy efforts, ensuring that arrangements are in place to support the child’s smooth transition between services and settings.

This may involve liaising with relevant professionals, such as SEN coordinators, healthcare specialists, and transition support workers, to develop personalised plans which address your child’s specific needs and preferences. If you instruct a solicitor they should advise you on accessing available resources and support networks to facilitate successful transitions and mitigate any potential disruptions.

Should I be considering participation in mediation or alternative dispute resolution?

You can consider alternative dispute resolution methods, such as mediation, where you and your ex-partner can actively participate in crafting arrangements that address your child’s special needs. Mediation allows parents to work together with the assistance of a neutral mediator to hopefully reach a mutually acceptable solution prioritising the child’s well-being.

Mediation would not be appropriate in some circumstances including where there has been a history of domestic violence.

Family law matters involving children with SEN demand a comprehensive understanding of both legal frameworks and the specific needs of these vulnerable individuals. Legal practitioners working in this area must navigate complex issues related to education, healthcare, and decision-making, all while prioritising the child’s best interests.

By advocating for arrangements that promote the child’s overall well-being and ensuring their voice is heard throughout the legal process, parents and/ their solicitors can play a pivotal role in securing positive outcomes for special needs children.

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