When accessing the support required for children with special educational needs, family and education law are inextricably linked, explains David Allison, a director at Family Law in Partnership, and Anita Chopra, a director at Match Solicitors.
Most of us would agree that it is impossible to predict the future. When wedding vows are exchanged the idea of divorce is certainly far from your mind.
Similarly when a child arrives on the scene, you cannot predict whether they will be a straight A student, one who ends up being permanently excluded from school or one who has, or develops, special educational needs (SEN). The impact and pressure on the family of having a child with learning difficulties or SEN can be profound.
When a child has learning difficulties or SEN, a great deal of stress can arise, especially, but not exclusively, when they remain undiagnosed. A child may say that they feel bullied at school, but in the absence of a formal diagnosis, it can be a struggle for both the parents and the school to grasp the essence of the child’s concerns and needs. The school may observe a child who is progressing well academically with no evidence of bullying. But bullying and its aftermath, of course, can vary greatly and may be a symptom of an underlying learning issue.
Assessment by an independent expert, such as an educational psychologist (EP), can be key to identifying a child’s SEN. Without the understanding and insight that is provided by an expert assessment, parents can have a huge sense of misgiving as to what exactly is happening and how they can support their child most effectively. They may even start to question whether the school has done everything it can to support the child. This can erode trust and confidence between home and school, which, in itself, can become a source of wider conflict.
Managing the practical and emotional journey of a child with SEN can be very difficult for parents. Each family, and often each parent, deals with these problems in a different way. There is no right or wrong answer.
Education, health, and care plan
Accessing the support required for the child can be a costly and protracted exercise. Parents may need to issue an appeal against the child’s statement of special educational needs, or, as they are now called, education, health, and care plan (EHCP). Such an appeal would be issued to the First-Tier Tribunal (Special Educational Needs and Disability); the opponent would be the local authority that maintains the statement or EHCP.
During the appeal process there is scope to negotiate with the local authority, in a bid to stave off a final hearing. There is a duty on the parties to consider mediation, a mechanism whereby they meet to discuss the issues in contention, in confidence and in the presence of a mediator, to try to narrow them, ideally reaching an agreement that precludes the need to pursue an appeal. This mirrors the role of mediation in a family law context where it is used to identify, explore and resolve issues resulting from a family breakdown.
There is no certainty that an issue raised within an appeal will settle, and it may need to proceed up to the stage of a final hearing, where the tribunal will make a decision based on the written and oral evidence that has been presented. Key evidence comes from independent expert reports from professionals who have assessed the child, such as the EP, speech and language therapist, occupational therapist, and child and adolescent psychiatrist.
The entire process can put a huge emotional strain and financial burden on the family. This is especially relevant if you take into account the paucity of legal aid available, and therefore the private legal fees and cost of commissioning independent experts, both to prepare reports and, in some instances, attend the tribunal to give oral evidence. This can be particularly pertinent when a family is seeking a place at a residential special school. The local authority may accept that the proposed school can meet the child’s needs but object to the differential in cost between the school that they propose and the parental school of choice.
If the child is demonstrating acutely difficult behaviour at home but not at school, the tribunal may determine that a residential placement is not necessary. This can bring untold stress to the family, especially between the parents, who have to cope with the challenges of the child’s behaviour on a daily basis. If the parents feel that the only option for their child is to attend the residential special school then, unless it is named in the statement or EHCP, they would need to bear the cost themselves.
In situations where the relationship between the parents has broken down, further difficulties may flow. The parents may disagree about what is best for their child and therefore what steps to take with regard to the local authority. In these circumstances, the family court may become involved. Either parent may apply under the Children Act 1989 for a specific issue order (SIO) – that is, an order ‘giving directions for the purpose of determining a specific question which has arisen or which may arise in connection with any aspect of parental responsibility for a child’. A significant proportion of SIOs are made in connection with educational issues. Such applications can be particularly fraught and emotionally charged.
Where one parent believes that a residential placement is in the best interests of their child and the other does not, this may result in a dispute between the parents about where the child should live. One or both parents may apply for a child arrangements order under the 1989 Act to decide on the child’s living arrangements. Although the court will strive to ensure that both parents have a significant role in the life of the child, these applications can be particularly difficult as parents may feel that if they are unsuccessful, they may lose their child to the other.
In all applications under the 1989 Act, the child’s welfare is the court’s paramount consideration. In other words, the court must be satisfied that whatever order it makes is in the interests of the child. It may be trite to say that parents facing the prospect of divorce may struggle to focus on the interests of their children and this can make these applications particularly difficult.
Before making an application for a SIO (or, indeed, any order under the 1989 Act), it is necessary for the person proposing to make the application to attend a meeting with a mediator to consider whether mediation or other dispute resolution might avoid an application. These meetings are known as mediation information and assessment meetings (MIAMs). If the parents agree, mediation will then take place. This can certainly offer a much more constructive process to resolve such issues, and at least then the decision making remains with the parents. Family Law in Partnership offers ‘Parenting After Parting’ classes to clients to help parents focus on the needs of their children in reaching any agreement.
Financial provision and support for a child with SEN may be key to a financial settlement on divorce. Again, this may make achieving a settlement more difficult. A parent with care of a child with SEN may require additional support, both in terms of direct provision for the child and in circumstances where the child’s needs impact upon that parent’s ability to earn. While these needs may be very real, the parent being asked to pay may feel resentful, most particularly where the parent with care may then need additional financial support long after the child has finished school.
The requirement to attend a MIAM relates equally to applications for financial provision. Where children are involved, this can be a much better way to get to an agreement. If the adults need additional support in the process, then collaborative law may be the better option. It will be vital for the parents to find a process that does not negatively impact on their ability to deal with the issues that may arise for the child with SEN on an ongoing basis.
When unravelling the challenges of children with special needs, family law and education law are inextricably linked. Knowing how to access assistance from both family lawyers and education lawyers can go a long way to alleviate some of the concerns.
This article first appeared in Solicitors Journal SJ 160/7 23 February 2016