05 December 2022 - Article
My six-year-old said the other evening ‘If your mum and dad are arguing, you need to tell a grown up at school’. This rather took us aback, but in a refreshing and reassuring way. That his primary school was already raising this and encouraging children not to bottle up worries and to be open about talking about difficulties, or perceived difficulties, at home was heartening.
Which brings me on to the latest report on the impact of parental separation on children. ‘What about me?’ from the Family Solutions Group, led by Mr Justice Cobb, puts those children front and centre in a process that too often sees them as commodities in a transactional negotiation.
280,000 children experience parental separation each year. This report recognises that parental conflict harms children. It causes harm at the time of the breakup, but it also risks creating longer lasting damage, or as the report puts it, ‘casts a long shadow over the child’s life course’. Research suggests that children subject to parental conflict have a greater chance of suffering emotional and behavioural issues later in life. It can also affect academic performance, mental health, social interactions and resilience.
There is acknowledgement in the report that the UK is behind other jurisdictions in addressing problems arising from family breakdown, and the systemic change that is needed could take 5 to 10 years. But there is also excitement among its authors and professionals that this could be the holistic and joined up approach that is so desperately needed. One of the report’s core recommendations is to establish a dedicated government minister and department, to give separated families the focus and oversight they need and deserve.
Court is not the third parent
As family lawyers, we advise clients that court should be the last resort. It is a necessary backstop, but it is a blunt instrument and inevitably something of a lottery given judicial discretion. Whether we like it or not, different judges have different views on what is best for children. And in practice, often what is in dispute is not susceptible to legal remedy. Nowhere in the statute book does it say whether a child should be allowed to go to football club on a Friday night, have their hair cut every six weeks or six months, or at which junction of the M4 the handover should take place.
Unless there is a risk of harm (in which case, court is the place to go) we try to keep issues surrounding the children away from bitter lawyers’ letters and out of court. These are often better resolved by referring couples to mediation or to a child psychologist or therapist, who are more qualified than lawyers to help parents navigate and resolve issues between them, and to guide them in supporting their children in as joined up a way as possible through what will inevitably be a traumatic period.
Every family is different and what works for some children will not work for others. For example, some cannot cope with staying overnight midweek at the other parent’s house, and prefer a week on / week off arrangement. Whereas for others, a week will be too long away from one or both parents. The law provides neither insight nor answers to these matters.
What is clear from the report is that not only couples, but all of us, including lawyers and judges, need to have a better understanding of how to support families navigate their way through this, minimising harm to their children.
1. High profile public campaign
The report recommends a high profile public campaign, because we do need to bring about a general mind shift, a sea change – not only of individual couples, but of the legal system and the wider public. We need to get away from the language of courts and legal rights and towards an understanding of child welfare, promoting the rights of children to enjoy a relationship with both parents (provided there are no safety concerns). We need to start by changing the language. For example, the term Custody has no place in these matters. Children are not objects or inmates. Likewise, in this context, parents do not have rights – they have responsibilities. The child has a right to a relationship with their parent or parents, not vice versa. A fact that is easily forgotten.
2. One central website: ‘The Separated Families Hub’
And above all if (hopefully if) parents do decide to separate, they know where to go for information and that information is clear about the need for them to put their child’s interests first and their own relationship issues second.
At present, the report says, the information available to parents is neither easily accessible nor always reliable and it can be difficult for them to know which information to trust. There needs to be clear, comprehensive and co-ordinated information about parental conflict. In the report, its authors recommend having one authoritative website called ‘The Separated Families Hub’.
3. Widespread dissemination
It should be freely available, taught in schools, given out by health visitors, at GP surgeries, Citizens Advice Bureaus, and the report makes clear that children whose parents are separating need a ‘place to go’ online, which could be a dedicated section for them on ‘The Separated Families Hub’.
What will that information look like?
At an early stage guidance on parental conflict and how it affects children needs to signpost parents in the right direction. Where there is abuse or any risk of harm, the path to safety will direct parents to the court system and legal support straightaway.
In all other circumstances, the appropriate route should be towards cooperative parenting, supported by:
1. Legal information (not advice) – advice polarises and can entrench people’s positions, whereas legal information, which the report suggests can be given to both parents neutrally by the same professional, need not have that effect.
2. Therapeutic support to help parents with their own feelings.
3. A safe process for resolving issues with other parent, for example through mediation.
4. Attending a parenting programme.
We need to accept that parents cannot just be told to stop fighting. Many will need the practical support to do so, and to understand the damaging impact such conflict can have on their children.
There are many parenting programmes available but as the report points out they are not always easy to find and would benefit from being streamlined and co-ordinated. Attending a parenting programme should, the report says, ‘become the norm following separation’.
Listen to the children
Any child who is 10 or older should have their voice, their views and their wishes heard directly, the report makes clear. There is evidence that not only does it empower the child to feel listened to and to be part of the process, but if their views are respected it makes the arrangements that are then put in place more likely to last. It is hardly surprising that such an approach will have more chance of success than arrangements imposed by a judge who has never met the child.
The report makes clear that the child’s voice should be heard in practice and not just in theory, and that their views should be recorded and documented.
The President of the Family Division has described this report as ‘exciting’. For those of us who have spent years imploring our clients to try to settle children issues without resorting to the overwhelmed court system, this report sends a welcome message, and even more so given the cross-sector input it has had, and the widespread support it seems to have attracted. There is much to be done. But if schools are already talking to children about parental conflict in a measured and sensible way, it is an encouraging sign and the rest of society must follow that lead.