Advocating for children with special education needs during divorce: The role of family lawyers

In the intricate landscape of divorce proceedings, it is often said that the welfare of the child remains the preeminent, unwavering consideration to be safeguarded above all else.

This is particularly true when it comes to the well-being of children with special education needs (SENs). Amongst the most common SENs are conditions such as autism spectrum disorder (ASD), attention-deficit/hyperactivity disorder (ADHD), and dyslexia. For children with SENs, safeguarding their continued access to specialized support, accustomed routines, trusted caregivers, and established educational programming should be the guiding tenet, as consistency and stability are paramount for their optimal development and emotional well-being.

However, the reality is that divorcing parents often have differing views and disputes regarding the appropriate learning environment and specific needs for their child. As a result, children face the trauma of disruptions to their routines, the loss of trusted caregivers, and uncertainties about their educational future. As such, family lawyers play a pivotal role in ensuring the rights and interests of these children are protected and championed and to find solutions that minimize disruption to the children's lives as much as possible, so that, despite the divorce procedure, children with SENs can continue to thrive and excel in a supportive environment.

Understanding the terminology

Before delving into how family lawyers can assist in resolving disputes regarding children with SENs, it's important to understand several key legal terms that come into play during divorce proceedings. Custody refers to bundle of rights that parents have over their children, including the right to make all important major decisions, such as education, religion and medical treatment. It can be sole or joint. Care and control, on the other hand, determines the primary caregiver responsible for the day-to-day care and residing arrangements of the child and making routine day-to-day decisions for the child. Access, whether defined or not, is then granted to the parent who does not have care and control of the child.

The family lawyer's role

Family lawyers play a crucial role in advocating for the welfare and best interests of children with SENs during divorce proceedings. One of the primary ways family lawyers protect the child's welfare is by conducting comprehensive assessments of the child's needs. This involves facilitating collaboration with psychologists, educational specialists, and other relevant professionals to gather detailed information about the child's physical, emotional, cognitive, and social requirements. This deep understanding allows the family lawyer to make a compelling case to the court about the appropriate custody, care and control, and access arrangements that will best serve the child.

While joint custody is typically the norm in Hong Kong, cases involving children with SENs needs may justify a departure from this standard arrangement. In the case of CHK v. CKT (Care and Control, Access) [2023] HKFC 83, the court clearly prioritized maintaining the status quo in order to protect the well-being of the children. The family court recognized the significance of the elder child's ADHD, and subsequently granted sole care and control to the mother. The court's decision emphasized the paramount importance of preserving the existing caregiving arrangement and the continuation of care by the familiar primary caregiver. That said, the court also acknowledged the father's rightful involvement in the children's lives, and therefore required the mother to provide an undertaking to consult the father on major decisions regarding the child.

Regarding financial matters, the typical court order pertaining to child maintenance stipulates that financial support shall continue until the child reaches the age of 18 or completes their full-time education, whichever occurs later. However, in cases involving special circumstances, this maintenance arrangement can extend beyond the age of 18, such as when a child has a disability or SENs. The overarching goal for the family law practitioner is to ardently advocate to the court for a child-centric financial arrangement that comprehensively addresses the specific requirements of the individual child, including their SENs, ensuring that the necessary financial provisions are in place, potentially extending past the child's 18th birthday if their circumstances so necessitate. In gist, there is no one-size-fits-all formula, and family law lawyers must thoroughly understand the distinctive needs of each child to secure the most appropriate and tailored financial support arrangement from the courts.

The benefits of mediation

Family lawyers often advocate for alternative dispute resolution methods, such as mediation, when it comes to children's matters instead of litigating in Court. Mediation is preferred by family lawyers for good reason - it can provide a more collaborative and less adversarial environment, allowing parents to move past their personal conflicts and instead focus squarely on the needs of their children. Child inclusive mediation can be particularly beneficial in high-conflict cases, where family lawyers often work with mediator and other specialized professionals like child psychologists or social workers. These child experts can engage directly with the children, utilizing techniques like guided drawings, to better understand and convey the child's own needs, preferences and emotional state to the parents. This personal insight from the child can often have a powerful impact, helping the parents park their grievances at bay and come to a mutually agreeable resolution that truly centres the child's requirements. Furthermore, mediation allows parents to make detailed arrangements for their child post separation, where they are encouraged to prepare a co-parenting plan which focuses on their child's daily routine and what is best for them.

The welfare checklist

While family lawyers and parents collaborate closely to safeguard the well-being of children, likewise, the paramount concern for Hong Kong's family courts when adjudicating custody and care and control remains the protection of the child's welfare. The court often refers extensively to the "welfare checklist" outlined in the Children's Proceedings (Parental Responsibility) Bill – although this legislative framework is yet to be formally codified.

This checklist serves as a comprehensive yet non-exhaustive guide, enabling the courts to evaluate a range of crucial factors. Chief among these are the child's physical, emotional and education needs - concerns which hold heightened significance when the child has SENs. In this regard, the courts would usually place emphasis on preserving the status quo, ensuring the child can continue accessing their established support systems and specialized programming. The courts also weigh the capabilities, resources, personality, wellbeing as well as other relevant factors of the caregiving parents. Additionally, the informed preferences of the child themselves are solicited, where deemed appropriate. Further considerations, such as the child's religious/cultural background and relevant professional assessments, are also thoroughly evaluated.

Conclusion

In conclusion, the role of family lawyers in advocating for the rights and interests of children with SENs is multifaceted. By leveraging their expertise, working closely with multidisciplinary professionals, and promoting alternative dispute resolution methods, family lawyers can help ensure the unique needs of these children are at the forefront of the divorce process. Through this holistic approach, family lawyers strive to secure the best possible outcomes for children with SENs during these tumultuous times.