The needs generated by disability have two components: children law for their welfare needs and finance law regarding money-related matters.
What about the welfare of our disabled child?
If the court is asked to make a decision concerning the living and contact arrangements for a child then the Judge’s paramount consideration will be the welfare of that child. This is known as the ‘welfare principle’. What is important to stress is that the ‘welfare principle’ applies to the circumstances of the particular child before the court. Every child is unique and will have different needs. There is no uniform approach that the court takes, although the law does say, for example, that a Judge must actively consider any disabilities or special needs that the child has. This could result in the court making different decisions and orders for children in the same sibling group.
What does a judge look at in children cases?
The court will need to assess whether and to what extent a parent or other relative is capable of meeting the child’s particular needs. This may become relevant as to what contact arrangements the court orders and whether they are in the particular child’s best interests.
What power does a judge have to decide about our child?
The law allows a Judge sitting in a private case (i.e. where the parties are the parents’ themselves and not the Local Authority) to make orders governing where a child lives, who they spend time with, whether to prohibit a parent or from doing something or whether to give permission for the child or parent to do something relating to the welfare and upbringing of that child. This could include, for example, whether a child receives particular medical treatment or not. These types of orders (known as ‘s.8 orders’) will generally last until a child reaches 16 years of age. This means that in most cases the court cannot make decisions and orders for a child once they have turned 16. However, the law does allow Judges to extend the duration of s.8 orders until a child turns 18 years of age. This can happen in some defined circumstances which the law says have to amount to ‘exceptional circumstances’. It may be appropriate for a s.8 order to last until a child’s 18th birthday if they are vulnerable, have special health/medical needs or otherwise lack capacity to make decisions of their own.
What difference does disability make in finance cases?
Disability can influence what is fair and reasonable in two ways: it can affect the adult and it can affect the child directly.
In both circumstances, it is likely that the outcome will be different than if there was no disability for the judge to ‘factor in’.
What does the law provide for adults?
The black-letter law for that is in Section 25 of the Matrimonial Causes Act 1973 (as amended) which sets out a list of the factors that the judge must consider when deciding what is ‘fair and reasonable’ in all the circumstances of the case.
In order that health issues are not overlooked in that exercise, specifically the court must consider
(e) any physical or mental disability of either of the parties to the marriage
which whilst expressed in terms of ‘disability’ is widened by more focused provisions such as
- Income and earning capacity and
- Financial needs
So the courts are directed to focus on the financial impact of health issues, not simply allocate resources to positively discriminate and create a ‘contingency fund’. That might be considered, but it is a secondary issue to ongoing support. ‘Ongoing support’ means ‘periodical payments’ i.e. an amount paid monthly, even if expressed as a yearly figure.
Looking after a disabled person can affect a person’s ability to work or limit their work-hours, which is likely to affect whether there might be unmet need. The benefits system provides some financial support in some circumstances and in looking at ‘unmet need’
Apart from monthly support, might disability affect the share of capital and the family home?
Yes – because ‘reasonable needs’ is a big part of a judge’s thinking in deciding what is fair, disability can influence what difference there might be so far as housing or having money available to meet needs and that includes needs affected by disability.
If a person has received compensation to provide for meeting needs or a grant from a charity to help them, that money should be assumed to be earmarked for that purpose as an independently assessed ‘need’. For example a military charity providing money to make life easier for a disabled service person has assessed ‘need’ and there are strong arguments that the part of that money was given to meet identified needs should be ‘ring-fenced’ to meet that need. The same goes for accident compensation – the starting point is that they money is required to meet that identified need. Some of the funds might not be so clearly set out for particular identified needs, so it cannot be automatic that a fund should be entirely ring-fenced, but the arguments for retaining it to meet need are often strong.
A grant from a charity or a fund for a child, even if held in the name of the parent or not under a formal trust arrangement should again not be assumed to be available for other purposes. What is right in a particular case will differ, but in needs-based cases, those proven needs have an independence about them that should be persuasive to a judge.
What about child support for a disabled child?
Child support is dealt with under the government formula in most cases. It has been policy that the courts (and lawyers) should be excluded from deciding child support.
The formula is the starting point and that is arbitrary, not determined by need. A wealthy individual can demand support from a less affluent parent under the CMS scheme, no matter whether they need it and with no restriction on what they use it for. For all the government cares, the receiving parent can use it to buy luxury Rolex timepieces (other brands are available) or stick it on the nose of Three-Legged Linda in the 2.30 at Blaydon. Unfair as that seems, the government in its wisdom and care about meeting the needs of children, created a non-discretionary child tax system for ‘absent’ (horrible misnomer) parents.
When does the court have the power to go beyond the CMS scheme?
In cases of disability relating to a child, the power to go beyond the CMS scheme comes from S.8 of the Child Support Act 1991.
That can be found on the government’s website at
Child Support Act 1991 (legislation.gov.uk)
At subsection 9 disability is defined as
For the purposes of subsection (8), a child is disabled if he is blind, deaf or dumb or is substantially and permanently handicapped by illness, injury, mental disorder or congenital deformity or such other disability as may be prescribed.
Not a very modern way to define somebody having a disability, but as it is judges who look at jurisdiction and they understand the concept of disability which would be more in accordance with the Equality Act 2010. Under the Equality Act 2010, a disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out day-to-day activities.
That more modern approach is applied to the right to seek support for children, even if the Child Support Act 1991 itself is expressed in what seems a more restricted manner. The court is known to accept conditions which fit the EA2010 definition more comfortably than CA1991.
If the court can consider child support outside the CMS regime, how does it do that?
However, not only does financial law allow the welfare of a child to be a consideration in the sharing of assets between the parents, it should be the first consideration as below:
- It shall be the duty of the court in deciding whether to exercise its powers… and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
What does First Consideration mean?
‘First consideration’ does not mean that it is a ‘trump card’ which means that whoever looks after a child the most gets a massive financial advantage, but that when thinking about what is right, the court must consider whether the needs of a child – particularly housing or education – can be provided for in the scheme of things or how those needs can be met.
What factors are taken into account for consideration?
When considering using its powers in respect of those children for whom the court retains jurisdiction, the court must consider the following:
(a) the financial needs of the child;
(b) the income, earning capacity (if any), property and other financial resources of the child;
(c) any physical or mental disability of the child;
(d) the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;
And reflecting back to the overlap of considerations with the parents it includes:
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before the breakdown of the marriage
(e) any physical or mental disability of either of the parties to the marriage;
So just about anything that a rational person might think worthy of inclusion is there in black and white.
What about step-children if they haven’t been adopted but have been treated as ‘our’ children even if one of us is not the birth parent?
The rules take this into allowance and in addition to the general considerations add in the following:
- whether that party (non-birth parent) assumed any responsibility for the child’s maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility
- the length of time for which that party discharged such responsibility – i.e. the length of the household relationship with that child.
- whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own – so that if the ‘parent’ had been mistaken about paternity, their acceptance of responsibility will have been on false grounds.
- the liability of any other person to maintain the child – i.e. if there is a birth parent still alive who under CMS scheme should be supporting that child, the support that the parent/child should be getting from that direction should be considered.
So the factors for step-children are slightly different, but they are not excluded from consideration despite the parent having no liability for them under the CMS scheme.
—Section 25Matrimonial Causes Act 1973 (as amended)—
Section 25 is reproduced below with some cross-referencing removed for clarity:
Matters to which court is to have regard in deciding how to exercise its powers
(1) It shall be the duty of the court in deciding whether to exercise its powers… and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
(2) As regards the exercise of the powers of the court in relation to a party to the marriage, the court shall in particular have regard to the following matters—
(a)the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c)the standard of living enjoyed by the family before the breakdown of the marriage;
(d)the age of each party to the marriage and the duration of the marriage;
(e)any physical or mental disability of either of the parties to the marriage;
(f)the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g)the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
(h)in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit . . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
(3) As regards the exercise of the powers of the court…in relation to a child of the family, the court shall in particular have regard to the following matters—
(a)the financial needs of the child;
(b)the income, earning capacity (if any), property and other financial resources of the child;
(c)any physical or mental disability of the child;
(d) the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;
(e)the considerations mentioned in relation to the parties to the marriage in paragraphs ( a ), ( b ), ( c ) and ( e ) of subsection (2) above.
(4) As regards the exercise of the powers of the court…against a party to a marriage in favour of a child of the family who is not the child of that party, the court shall also have regard—
(a)to whether that party assumed any responsibility for the child’s maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;
(b)to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;
(c)to the liability of any other person to maintain the child.
Related Articles
Load More