Why the Child’s Needs Really Do Come First
As we all know, section 25 of the Matrimonial Causes Act 1973 requires the court to give first consideration to the welfare of any child under 18. In practice, when a child has a disability, this principle takes on far greater weight than many separating parents initially anticipate, and sometimes more than the court’s equal sharing approach might otherwise suggest.
For us as practitioners, this means that needs-based arguments will often dominate. A disabled child’s housing, equipment, and continuity of care will quickly move to the top of the list, and the “yardstick of equality” becomes secondary.
Housing and Adaptations
In my experience, housing is usually the crux of the case. If a property has already been adapted, for example with ramps, widened doorways, hoists, or sensory spaces, the argument for the primary carer retaining that home is compelling. Rehousing a child in a non-adapted property is rarely practical and, in some cases, may simply be unsafe.
That is not to say the other parent’s housing needs fall away, but rather that the child’s welfare can legitimately override parity of outcome. Where resources are limited, the court is more likely to stretch provision for the child’s home, even if it leaves the other parent in less favourable accommodation.
Financial Provision Beyond 18
Another area where we need to guide clients carefully is around the assumption that financial responsibility ends at 18. For disabled children, that is often not the case.
The court has jurisdiction to order maintenance beyond 18 in “special circumstances,” and ongoing disability squarely falls within that. Periodical payments may be extended, and lump sums ordered to meet capital expenditure such as specialist equipment or further adaptations. The Child Support Act restrictions do not bite in the same way here, as the court retains jurisdiction where disability is involved.
Nesting and Stability
Some families experiment with nesting arrangements. For a disabled child, this can be attractive because it avoids moving equipment and provides consistency. But we all know how financially and emotionally draining nesting can be on parents. In my view, it can only ever be a short-term measure, and it’s important we set expectations with clients from the outset.
Transition to Adulthood
This is where things get especially difficult. The Care Act 2014 and the Children and Families Act 2014 provide frameworks, care and support assessments, EHCPs up to 25, personal budgets. However, services often reduce dramatically once a child reaches adulthood.
As family lawyers, we need to anticipate this. Settlements that assume a clean financial break at 18 may not be realistic. Provisions such as trusts or structured settlements can be invaluable in ensuring long-term stability for a disabled child as they move into adulthood.
Considerations
When we are drafting or negotiating, we must consider:
- Is this settlement robust enough to support a child well into adulthood?
- Does housing meet both immediate and future needs?
- How can we balance parental autonomy (e.g. retirement planning) with a child’s lifelong dependency?
Final Thought
Cases involving disabled children require us to step outside the usual “needs v sharing” narrative. The law gives us the tools, but it’s our job to use them with foresight. Above all, we must ensure that the child’s welfare, both now and in the future, remains at the centre of the financial settlement.
Sarah Whitelegge is a Legal Director at Myerson Solicitors
