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The effect of a disability in family law

It is somewhat trite to say that all children are special and all families have their own unique needs and requirements when going through the painful process of separation. There are however some families where disability or special needs of either the children or the adults involved adds an extra dimension to both negotiations, the court process and the eventual outcome.

We thought it might be worth highlighting some of those issues. Of necessity this blog can only touch upon these issues, so as always if there is anything you would like to discuss with us in more depth, please get in touch.

Looking first at adults with a disability or specific needs, then when considering a fair financial settlement on the breakdown of a marriage or civil partnership, one of the criteria which must be considered is whether either party has a physical or mental disability. This criterion is included in the list of factors a court must consider, and is set out in statute. So if a spouse or partner has a disability which means they require, for example, specific adaptations to a property, or require paid carers, or their ability to work is affected, then this will be borne in mind by a court when looking at the appropriate division of assets and income. It may well be that the majority of a family’s financial assets are required to provide a home and support for the disabled spouse or partner, which can seem harsh on the other party. Of course, the court has a responsibility to take each person’s needs into account in coming to a fair division of financial resources.

Coping with children with disabilities or special needs can be very challenging for the parents, and research has shown that couples raising disabled children are more likely to separate than parents with non-disabled children. For those worst affected, the gruelling schedule of care and frequent hospital visits, plus lasting grief, financial pressure and continual worry over a child’s health can put massive stress on a relationship.

In addition to the emotional aspects, the total cost of bringing up a child with a disability can be up to three times higher than for a non-disabled child. There may also be longer-term financial implications extending beyond childhood. Often problems within the NHS or Social Services can mean families have to fund equipment or care for their children, and one parent may be forced to give up work to be a full time carer, with the obvious impact that will have on the family’s income.

As with adults suffering from disabilities, the needs of children will be borne in mind by the courts when dealing with a financial settlement on separation. In fact, in all cases, the court’s first consideration must be the needs of the children, so where those children have extra needs which impact upon the family finances, those needs and how they can be met from available resources will be the court’s primary consideration.

Dealing with the financial impact of disability, either of adults or of children can be very tricky when trying to sort of a separation or divorce. It requires skill, patience and understanding from the family, the professionals involved in helping them and the courts. There is some guidance from case law on the appropriate considerations where disability is an issue, but inevitably each case is unique and requires a bespoke solution to ensure that the needs of all involved are met, post-divorce, to the greatest extent possible.

So what about the court process itself? If it is not possible to sort out a financial arrangement through negotiations, then how does the courts treat disabled litigants?

In a recent case the Court of Appeal gave some helpful guidance on how courts should endeavour to assist parties to a case who are deaf or hearing-impaired. The case (known as Re C ) concerned a young child who was taken into care, and whose father was profoundly deaf but used British Sign Language to communicate, and whose mother had hearing and speech problems. In this case, the parents succeeded in appealing a full care and placement order due to failures by the local authority, including failures to deal appropriately with their disabilities in the parenting assessment and court processes.  The court highlighted the need to involve suitably qualified interpreters from an early stage in proceedings in order to assist the deaf or hearing-impaired person to participate fully in the court process. Furthermore, consideration should be given to using deaf professionals (if needed), or certainly professionals with experience of working with deaf people, as part of any expert assessment process. It is important that, as an organ of the state, the court service complies with equality legislation and as such does its utmost to assist litigants who have hearing problems, or indeed other disabilities.

If a disability is so severe that the relevant person does not have the ability to participate in court proceedings, a set of different rules apply involving the official solicitor: you can read more about those here.

The guidance from this case has wide application, and shows that the courts must do their best to ensure that people with disabilities can participate fully in the process. It is important that the lawyers involved are fully appraised of the nature of the disability early on so that they can assist with putting arrangements in place in conjunction with the courts and other professionals.

As always, if you have any questions on aspects of this blog, you can comment below or call us on 01223 443333.


Join the discussion 7 Comments

  • Ernest Salt says:

    What effect would it have on the courts decision if one party has M.E. which affects him both mentaly and phyically such that he would not be able to cope with a court situation and where he has a 16 year old son who has to take examinations alone but wants to go to Sweden to university and to that end is studying Swedish on the internet and his wife wants to claim the 4 bedroom house and part of his pension ( he is retired due to M.E.) and also maintainance . His wife has only worked 4 years during their marrige despite the fact she could have before they had their first child and did not work when he was on half pay or when he was on no pay whist pension was being sorted .They have been married for 29 years

  • Ms Eulale. B says:

    I am a registered social worker and is currently going through an HCPC hearing (sacked from previous employer but working as a care coordinator for a fostering agency) to decided on my competence. I have dyslexia. Recently had an assessment from a psychologist to assess my needs for adjustment for the hearing. Should acknowledged that I had dyslexia and made recommendation. However, I had asked questions ie with adaptation to support me will this effect my work. The psychologist responded that my dyslexia is so bad that I will struggle with or without adaptation bearing her her assessment that I had a stroke so she can only based this on that assessment and my performance on that day. Need advice as to where to go next as this comment is based not on my work preforamce but also has implication of me being de-registered and unable to work in any caring capacity

  • Liz says:

    Is there any case law regarding a mother with an adult diagnosis of ASD and the impact that has in terms of accessing the law? Has anyone cited discrimination from a former spouse in terms of behaviour intended to create anxiety and fear in the claimant. Thanks.

  • Tania says:

    Hi could you give me some advice on where to look up and read about how to manage a divorce settlement when one partner has a long term and unrecoverable disability ie how to get a better than 50/50 payout.many thnks

  • Lara Turner says:

    Hello. I am trying to find out information in regards disabled children with SEN and individual child contact orders. I have three children and my disabled child is not coping and significantly struggling with leaving home to stay away and with the other parents situation. The other parent will not discuss or admit to the issues regards our disabled child and l may end up seeking child contact order that works for my disabled child but is different to my other two children’s.

    Do you have any advice or guidance on this?

  • Chris Munroe says:

    Please share the case name for the above blog so that I can refer to it?

  • Mrs Janet Rebair says:

    I am a 57 yr old lady with a mobility disability left from a spinal cancerous tumour.I live with my 29yr old daughter who is my cater and my 26yr old son who is autistic and has SENeeds.My husband and I have separated but own half our home each.We have no mortgage anymore, and the house is adapted to my needs.I cannot work anymore so on benefits.My husband is 59 and still working.Is their a solution to releasing his half of the house so I can stay here with my son and daughter.

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