Divorce - disabled child- Advice please?

[SENSummer]

My marriage of seven years has ended this Christmas. My decision but STBXH has been emotionally checked out, difficult and distant for years so we’ve been on the verge a few times. It’s definitely over now.

I’ve held it together thus far because we have two small children. 4yo DD and 5yo DS who is extremely high needs ASD, profound learning disabilities, ADHD, non verbal, PICA and also massive for his age. Wears 9-10 clothes and weighs 35kg about 2/3 my size already. He is very difficult to care for. Honestly it’s horrendous he’s destructive and violent and just shrieks constantly whilst destroying everything he touches.

I’m scared they will make me take him and be resident parent. I don’t want to be. I can’t win against him in a fight anymore and all of his basic care needs are a physical fight. I also can’t deadlift him off the floor, which is a lot of what parenting him requires.

STBXH has been working long hours as a doctor throughout our marriage but does physically help with DS when he is here. He is much bigger and stronger than me and can still just about overpower DS when needed although worries he will hurt him. He has been deeply depressed for a long time and any periods spent alone with DS send this through the roof.

DS is in a specialist school with 1:1 care and has a small social service package. We have appealed multiple times for more or for him to be put into care as we just can’t manage him. We keep putting up bigger and bigger gates/locks around the house but he climbs them/breaks them and nothing can stop him.

I was forced out of work to be his carer even though I never wanted to leave work. I’ve done everything for DS for years fighting for all the medical/therapy/council help and his socialist school place but nothing made a difference. I’m scared for mine and DD’s safety and future if we end up in a house just us and DS. I cannot manage him or meet his needs and trying has such a detrimental impact on DD.

I don’t want to be his resident parent but I know that DH won’t want to either. He says he won’t be able to work which is true but that’s the situation I’ve been in for years so I don’t think he’s entitled to carry on like normal once we are divorced and I’m not his support act anymore. I worry what will happen and that they will make me have DS. I’ve spoke to social services and they said they don’t know what will happen.

I would of course share custody and if DH did have DS I would give him plenty of respite. I highly doubt the same would happen if I become resident parent.

if you’ve been through this please help!

What a very sad situation. I don’t know what happens when neither parent wants custody. When you’ve asked social services about your DS going into residential care, what has their response been?

‘There’s no places in residential anywhere’
‘He’s too young for residential care it would have to be foster care at his are but due to his physical size we won’t find foster carers willing or able to deal with him’
‘you would have to apply to even be allowed to complete a white rose form to have him placed and they will without doubt reject you based on his age and your circumstances’

When you say “they” will make you have DS, who do you mean? He’s your and your DHs child and agreements about his care would normally be made between you both. It sounds like you’ve carried the lions share of your child’s care up until now, if you need that to change you could try to negotiate a 50/50 arrangement with your ex, is your child likely to cope with that?

It’s very, very difficult to put your child into care of the local authority, or to find a residential placement for him. That’s not to say don’t try if you can’t meet his needs, but be prepared to have to fight for it. It’s not at all unusual for mothers to find themselves left with complex caring responsibilities following divorce, with the limits on their earning power and associated poverty. Your best bet at least initially is to claim all the maintenance and any benefits you’ll be entitled to and a contact arrangement that gives you some respite.

What a really sad situation OP, my heart goes out to you all.

Sorry I have no advice though

Neither of you can be made by a court (which is what I presume you mean by “they”) to be resident parent: you need to come to an agreement yourselves, a formal child arrangements order would only state when each parent is expected to have care, but is only really of any use where one parent wants more care than their co-parent wants to offer, rather than less. It’s a very hard situation, if social care aren’t willing or able to provide more respite, or pursue a residential placement, I feel for you.

You have a legal right under section 20 of the Children Act to ask for your DS to be accommodated in care. I would strongly recommend you contacting Michael Charles, one of the country’s best SEN lawyers or Damien Dobson of JWP Solicitors, a s.20 specialist, to seek help. You could either ask for a 52-week residential placement for your DS or ask Damien to help you seek appropriate care. No judgement here. You have a duty of care to your DD. You also have a right to quality of life. Section 8 of the Human Rights Act.

The legal advice I took told me that in a divorce there is a resident parent and a contact parent can secure their entitlement to visitation via a contact order but the resident parent can’t actually force them to do it via one.
So basically if XH wanted to see DS I couldn’t stop him but I equally couldn’t enforce that we both have him 50/50 it very much smacked of ‘if you’re the resident parent you’re on the hook for everything and the contact parent can just dick around as suits them’ hence I am very reluctant to be DS’s resident parent. I know I would still support XH and be involved with DS but I’m not at all confident that XH would do the same. I think between his long draining work hours and DD , I think DS would just be left with me.

I’m really sorry to hear about your situation.

What strikes me is that all those statements from social workers are completely hypothetical. They may be right, they may be wrong, but either way they haven’t seen an application about your ds yet. You need to go ahead and apply anyway for residential care in some form. Things sound very unsafe as they are.

As a first step I would get this thread moved to the Special Needs board and ask about organisations that will support you with a process like this. You need someone to be on your side as a family in crisis.

Could you afford live in carers between you and ex? 2/3 carers on rotation that live in?

When I say ‘they’ it’s from the legal advice I took, they basically said the court would make the decisions they felt in DS’s best interests

No. Absolutely could not afford that.

Other option would be nesting. Disabled dc stays in one property and you and dh switch about 50:50.

Are you going to go back to work ? Would finding a job put you in a better position to not be resident parent and more 50/50 ?
Your DH will say he doesn't have the time due to his hours, but you need to support yourself as well now.

Yes this is basically what I was told by the solicitor I spoke to.

The issue is neither of us want or are willing to take resident parent for DS.
I know this sounds awful trust me and honestly never in a million years did I think I could even comprehend this but DS is beyond anything I could have imagined. His care needs are so high and he is such a danger to himself and those around him.

I honestly do think he needs to be in a facility. As an adult I’m certain he will be.

You’re not looking for a standard care setting though, you’re in need of specialist provision due to his disabilities. That means that while a standard residential unit wouldn’t be appropriate, there may be specialist provision. You’ll need to do your research, it can be hard to find out what particular needs services are set up to meet but that’s where I’d start - are there specialist residential schools (usually run by charities/independent schools) for children with profound needs. Places are both very limited and eye wateringly expensive so the local authority will do anything not to place him, but it may be a possibility.

Support for parent carers is absolutely appalling, I really feel for you.

I suggested this but would be very difficult financially

You are in Scotland? The laws are different in England. The OP has a legal right under s.20 of the Children Act to request her DS be fully accommodated by her LA. It’s possibly the same in Scotland that social workers, who do not understand the law, will seek to gaslight the OP, mainly in a bid to save money. As the law stands, the LA cannot refuse a s.20 request. OP, I would strongly recommend that you phone Damien Dobson at JWP Solicitors for a free consultation. Damien is a superstar and does a lot of pro bono work for families like yours and mine.

You cant just apply for residential schools, its not that simple, it is usually only a very last resort and the LA have to agree to fund it.

Can you divorce but still live together? Could you put up with each other enough for that?
Because leaving sounds horrific and worse for everyone, especially you, whereas if STBEXH isn’t a total dickwad then maybe you could make an arrangement work??

Your little boy needs to go into residential care, this is best all round for him.

SS cannot refuse, any child can be put into care. You are not capable of looking after him even as a couple, and you and dd will be at risk alone.

You need SS to take you seriously. Legal advice is the way to go.

I'm afraid my friend had to refuse to pick dd up from school to get them to take her seriously. She was at the end of her tether and ready to end her life. There was no need for it to get to that point, you are part of a society that is set up to help.

So if I took both kids I wouldn’t need to work. I would have UC, DLA (Highest rate for both) and both CM and spousal support from DH. Something he is happy to give to be rid of DS. He’s already said he’ll sign up to giving me whatever I want if I take DS. But I’d honestly rather work a minimum wage job and barely scrape by than live this life anymore. I’d be very happy to go back to work.

Im in England

If neither of you can meet his needs then social services will step in, they don’t want to because they will need to have custom team care I suspect and that will swallow up a huge amount of money. If you can manage to share custody of your stbexh has primary custody you could negotiate with social services for respite potentially, my dh did when still with his exw, she basically presented that full time care would be hundreds of thousands (literally) so they needed 20 hours a week in term time and 50 in school holidays, they got it. As an adult she’s in full time care and it’s around £300k !!!

Yes, I guessed so.

@jellycatspyjamas is based in Scotland. The laws are different there.

Sounds like you need some specialist legal advice and SEND advocacy.