Legal protections for child with special needs

Dear Mrs Macaulay,

My child is special needs and requires therapies, a special learning environment, as well as a special diet as she has gastric issues. Her father resides in another Caribbean country and sends money only when it is convenient for him. When our child was younger he showed more interest in her well-being; however, as she is getting older and there is slow improvement with her disability, he has said he does not have any money, and I should not waste my money on therapies and sending her to school because she is non-verbal and would not be able to learn.

I was the one spending on therapies since her autistic diagnosis at age two (severe). She is now 10 and doing better (moderate to severe). She requires a shadow at school which I pay for.

Her therapies have been discontinued over three years now as I am no longer able to afford them. However, I do what I can at home, and her school is a God-send.

Recently, as a result of the constant stress, I suffered a minor heart attack and I am no longer willing to bear the full burden of caring for her on my own. I sometimes get help from family and friends financially (I beg) to meet our daily needs because her needs surpass my monthly salary by double digits.

However, what I am now realising is that I have very little financial resources in place in the
event of my passing, or if I am unable to work. It is clear that her father wants no part in her care, and he said on one occasion that he would have to give her away if I was not able to care for her anymore. He said he has to work to provide for himself, and a child with autism would only slow him down. Therefore, as her mother, I have to make sure I put enough money away to ensure her future needs are met. She is my only child and her paternal siblings are adults who don’t keep in touch.

I want to take her father to court; however, I would like to know three things.

1) Can I ask the court for sole custody, with supervised visits to her father?

2) Can I petition the court to have her father provide mandatory life insurance/financing that would go to her in the event of anything happening to us?

3) I also want to petition the court to have her father pay for half of her expenses so that I can put a little extra aside for her future.

Mom,

I have carefully read your letter and fully understand that it is indeed necessary for both you and your child that you apply for and obtain all the necessary orders which would provide for your child’s health, development and care, and that the latter would necessitate that arrangements both financial and contractual be put in place for the residence and proper care and provision for your child for the rest of her natural life. You must of course apply for these as soon as you can as a matter of some urgency.

Your first question is whether you can ask the court for sole custody and to grant her father supervised access. My immediate and clear answer is yes. However, I suggest that you commence your applications by starting with a declaration that this man is the father of the child. I suggest this because you have not said whether he appears on her birth certificate. In any event, he has, for 10 years, as intermittent and sporadic as his provision for her maintenance has been, by his conduct admitted to his paternity. Therefore, my suggestion for a declaration of paternity to be applied for, may not be necessary. You can decide as you know the full facts. So, you should go to the court office of the Family Court for your parish of residence to make the necessary applications for your child’s care for the rest of her natural life.

Your application for custody, care and control and access, must be that you have the former, and the father is to have access upon him giving you or the carer or trustee of your child, reasonable notice that he intends to visit during a specific period of time.

The answer to your second question is also yes. The Maintenance Act, apart from providing for periodic maintenance sums to be paid by parents of minor children and children with permanent infirmities, can make orders that a lump sum be paid by the defendant to the applicant for the child’s benefit, or that the lump sum be held in trust for the child. In fact, the court under this Act is granted wide powers to make orders to enable the provision of financial support for children with permanent challenges which require special services and care both financially, and for their day to day care, existence, education, development and safety. This is for the provision for the future and to ensure the setting up of fixed and settled arrangements in the event that either or both of you are no longer around to provide for your daughter, and also to ensure her daily care. Therefore, the insurance policy that you will ask the court to order the father to take out and maintain on his own life, ought to be the investment kind, in which she is to be named the sole beneficiary. It must be ordered that in the event the insurance benefits are to be paid out, that the funds be held in trust by one or two trustees appointed by you or the court, or that it be paid to the collecting officer at the court, and that a trust be set up for the sole benefit of your child.

The court could also order that the father pays a lump sum, and the sum can be held in trust or invested as ordered by the court, and be the responsibility of the appointed trustees or trust institution as the court orders.

Your third question relates to section 15 (1) (a) of the Act, which provides for periodic sums which he should have been paying regularly all these years. So your application for this would simply be for maintenance.

You must, in your affidavit in support of all the orders you apply for, relate all the relevant facts of all your daughter’s needs and the costs of them, and that you had informed the father of the funds needed and what he has said and threatened to do. You should relate every bit of the relevant facts to assist the court to make all the necessary orders for the safety and security of your child. You should provide any medical reports, advice and/or instructions about her care from professionals in your affidavit, as well as any invoices, bills and receipts you may have.

When you go to the court’s office, you must take along a certified copy of your child’s birth certificate and the documents I have just mentioned to be exhibited in your affidavit in support of your application. So you’re applying for the declaration of paternity (if necessary); for sole custody, care and control with access supervised to the father; for one-half monthly maintenance contributions payable to the collections officer commencing from whatever date it’s ordered, for the rest of the natural life of the child. There would also be an order sought that X persons are to be appointed the trustees over the financial benefits of the child, to invest and provide for her expenses for the rest of her life, or until such other period as the court determines, and an order that proceeds from the ordered insurance policy of the father on his life, shall be made payable to the trustees/collections office, and that the same be held in trust for the benefit and expenses of the child for rest of her life.

As you did not ask, I assume that you are aware that orders made by Jamaican courts and vice versa are enforceable in all Commonwealth countries and certainly those which make up Caricom.

So I expect you to go to the Family Court as soon as you can, so that you can have peace of mind that you have made proper arrangements for your child to be cared for.

All the very best.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.