Why the Current Court Process would Benefit from Reform to Reduce the Impact and Stress on Children of Separated Couples

Children’s Needs Are Paramount.

If one takes, as an overriding premise, that the interests of children are paramount when their parents separate, there seems little argument that the court process requires modification from the position it has found itself in over the course of the last decade or two.  This brief note explores what the current issues are, and when and in what form the cavalry may arrive.

The Children Act 1989 fundamentally altered the landscape upon which private law proceedings – which is my area of specialty, and excludes, for example, care and adoption work – were conducted.  The opening section of that statute stipulates when a court determines any question with respect to the upbringing of a child that: The child’s welfare should be the court’s paramount consideration.

That is an utterly laudable aim, and whilst it may have taken practitioners and judges some time to become properly acquainted with that concept, in my experience the practice of private law involving children has improved incrementally over the last fifteen years or so.  However, there remains conflict within the system, and we are as a profession far from resolving all of the difficulties that exist.

The Systemic Creation of Conflict

At present we have a fault-based divorce system.  If spouses have not been separated for two years then one must blame the other to achieve a divorce.  That places spouses in opposition at the outset, and if they are parents it simply cannot assist future cooperation over their children. It simply does not provide any foundation for doing so, not least when the petitioning party on divorce has to lodge with their petition a statement of existing and future arrangements for any children.  Often produced at a time of high emotion and parental conflict, that document of itself can lead to further argument and discord.

Health and legal professionals alike now appear to recognise the myriad benefits for separating parties in supporting those individuals at the point of separation, both for themselves and their children.  One might consider it odd, therefore, that, in spite of a relative lack of insight at the time, the government of the day proposed a no-fault divorce system which entered the statute books on 4 July 1996.  It is of great regret to many family lawyers that this provision has never been brought into law by way of statutory instrument.

If parties that separate or divorce are not actively and positively supported around the time of their separation – or worse, if they are pushed into conflict by constructing a divorce document blaming the other for all of life’s ills – it is very difficult to turn the clock back once the proverbial horse has bolted: it is hard to undo what may already have been done.  Frequently this downward spiral descends into further acrimony.

Support Needs for Both Parents and Children

Adults, of course, are better equipped to look after themselves than children, who at this time perhaps more than ever require support, love and structure from their parents.  In particular, what children do not need is a barrage of criticism directed by one parent about the other.  Whatever the rights or wrongs may be of any family’s personal circumstances, these parents will remain an integral part of their children’s lives moving forward.

To my mind what families would benefit from when separating is an array of counselling and support services available to them at a cost that is not prohibitive.  Family consultants – whether therapists, psychologists, life coaches or mediators – can offer untold assistance to families, and bring a sense of understanding and normality.  Parents need support, which they can then directly and indirectly pass to their children.

Invariably children take the lead from the parent they are with, and if that parent is struggling to care for themselves then it stands to reason they will be less effective in looking after their child.  Parents with children are advised to help themselves before they assist by placing masks on their children when there is reduced oxygen pressure in an aeroplane, and the analogy is striking.

One may question how we arrived on this adversarial stage.  Mr Justice Coleridge, when giving the keynote speech at the Resolution AGM in Brighton last year, painted a sobering picture of the deterioration of the family justice system as he saw it.  His answer was that sensible funding was vital and paramount, and that the legal system needed to reinvest and reinvent the way in which families, and in particular children, were assisted through what might be the most turbulent event of their lives.

Positive Developments

On the positive side, change is coming.  The evolution of collaborative law since 2003 has proved hugely helpful to families up and down the country who have been able to take control of their own decision-making process with support from settlement-focused lawyers, family consultants and financial advisers.  Mediation similarly has found new energy as a freestanding forum for resolution.  Both processes empower the parties and at least provide the opportunity for individuals to be in charge of their own destiny rather than requiring the assistance of courts.

Two further initiatives are particularly worthy of mention.  The President of the Family Division has re-launched the Private Law Pathway for cases involving children.  The focus of that program is to help alienated parents identify the issues between them with the assistance of a mediator; the court will identify any risk to individuals and children alike; there is a clear edict to avoid delay; and greater thought must be given to hearing the voice of the children involved.  The final paragraph of that proposal seeks to help parents administer any order or agreement in a cooperative and child-friendly way.  If that ethos is adopted by courts and professionals alike, the improvement for children should be marked.

Lastly Resolution, an organisation of specialist family lawyers, have financed and fronted the Parenting after Parting workshops which are being run in six different centres across the country.  This is the most creditable of projects and seeks to identify for parents how they can better understand the effects of their separation on, and their conduct towards, their children.  The workshops offer practical and emotional assistance to parents – who do not have to attend together – and their objectives are child-centric.  Their use and potential benefit should not be overstated.

The future is rosier than it might have been had I been writing this piece even two or three years ago.  That the relevant professions have recognised the need for change, one would suggest, has been of great benefit to the children of separated parents.

Simon Bethel is an Associate of law firm Mills & Reeve and a member of the Resolution Children Committee.


To contact Simon Bethel, please email: [email protected] or telephone: +44(0)1223 222 238.  www.mills-reeve.com

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