Neurodiversity and Special Educational Needs (SEN) can significantly impact the process and ultimately the outcome of how the court determines both arrangements for children, and the division of assets on divorce where finances are limited. B P Collins’ family team explores in more detail.
A tailored approach
If parents cannot agree arrangements for their child on separation, such as where they will live and how they will spend their time between their parents, mediation has failed, the court may have to step in and decide what is in the child’s best interests. When making any such decisions, the child’s welfare is the court’s primary consideration. When a child is neurodiverse, particularly if they require significant support, a single joint expert may need to be appointed to advise and help the court decide how best to meet those welfare needs. Appropriate experts may include a suitably qualified child psychologist and/or an independent social worker. The court can then make their decision having regard to:
- The specific emotional needs of the child – A neurodiverse child might struggle to cope with being separated for long periods from their primary care giver, or both of their parents. The court will also consider the ability of each parent to meet the specific emotional and physical needs of the child.
- Schooling – there will be a greater emphasis to keep the child at their current school, particularly where they are in a specialist placement. It is worth noting that whilst decisions made by the Special Educational Needs and Disability (SEND) Tribunal are binding on local authorities, they are not binding on the family court. The court considers such decisions as persuasive but retains discretion to depart from them if broader welfare concerns justify doing so. The court’s assessment is a holistic one, focused on the child’s overall wellbeing.
- Housing and adaptations – assessing the suitability of each parent’s home to meet the child’s needs if they have a physical disability.
- Care routines – including medication, transportation, and handovers.
If you’re considering divorce and your child is neurodiverse, you can get in touch in complete confidence with our family team for help and advice by email or by phone on 01753 889995.
Financial orders for neurodiverse children
Financial matters are dealt with separately to the arrangements for a child. In additional to all the usual considerations that the court will factor in, where a neurodiverse child has complex needs, there is a greater likelihood of the primary carer’s ability to work being negatively impacted. Whilst it may be possible for additional state benefits to be claimed, should this not be sufficient, payments might be ordered by the family court against the non-resident parent to support the primary carer and meet the child’s needs.
A child with physical disabilities or is neurodiverse may also require home adaptations, for example, accessibility features or sensory-safe environments. This might be dealt with by (a) the court allowing the child and their primary carer to retain the family home if it has already been adapted or (b) dividing up the assets unequally to provide the primary carer with more to pay for the adaptations to their next property. Where parents are unmarried, orders can still be made for the transfer of property (during the child’s minority only), and lump sums to meet the same requirements.
Neurodiverse adults
Neurodiversity can sometimes contribute to communication challenges during divorce, which may increase the risk of conflict if not well supported. It is important that if you know or think that you or your spouse is neurodiverse that you tell your solicitor so they can adapt their approach and tailor their correspondence as required.
An adult with special educational needs may face separate challenges – both in understanding and participating in the litigation process. The court must ensure that such individuals are supported appropriately. The court can implement reasonable adjustments including:
- Use of intermediaries
- Adapted hearing formats and simplified language
- Appointment of a litigation friend if a party lacks capacity
In addition to procedural fairness, the adult’s earning capacity and ability to provide unsupervised care for the children may be limited by their disabilities.. These limitations must be thoroughly assessed to ensure that any outcome, whether financial or in relation to the children, is fair, practical, and in the best interests of the children.
Conclusion
Neurodiversity in a family introduces unique and often complex dynamics into family proceedings. Whether affecting children or adults, these needs require both solicitors and the court to exercise flexibility, compassion, and careful judgment.
For further information and advice, please contact B P Collins’ family team at enquiries@bpcollins.co.uk or call 01753 889995.
