What about the children?

“Happy families are all alike; every unhappy family is unhappy in its own way” (L Tolstoy)

When relationships break down it is a painful time not only for the parents, but also for the children and expert legal advice is essential to inform arrangements that can be made that benefit the children and provide them with a stable childhood where they are not torn apart by ongoing conflict between their parents. Children’s needs change as they grow older, as do the relationships they have with their parents.

Married parents already share parental responsibility for their children (“all the rights, duties, powers, and responsibilities which by law a parent of the child has in relation to the child and his property”). For unmarried parents, the mother has parental responsibility automatically, the father automatically has it if he is named on the birth certificate after December 2003, subsequently marries the mother or entered into a parental responsibility agreement which is registered in London. In practice, parental responsibility means both parents being involved in their children’s upbringing and sharing the decision making between them. Fortunately most parents are able to make decisions for their children. Where there are difficulties in communication, mediation or collaborative law are arenas in which such issues can be discussed outside the court process.

Only a small proportion (approximately 10%) of children separation cases end up in court and therefore by definition these can be the most emotive and contentious cases. The welfare of the children has always been the court’s paramount consideration and the welfare checklist in section 1 of the Children Act 1989 addresses a number of factors in reaching that conclusion, including the ascertaining of the wishes and feelings of the child (in the light of their age and understanding), the child’s physical, emotional, and educational needs, the likely effect on the child of any change in the circumstances, any harm the child has suffered or is at risk of suffering, how capable each of the parents are of meeting child’s needs.

With the changes in legal aid and increased pressure on the court system, it is not clear in the future how much time court will be able to give to considering the complexity of the checklist. As children get older, if parents cannot agree, there is a danger that children’s wishes are the determining factor. Parents need to make decisions jointly whilst sensitively taking into account what their children want.

Contrary to reports in the media, most applications for contact orders are granted and the court has always recognised the importance of a child having a positive ongoing relationship with both parents for the rest of their childhood. Indeed, in 2010 just 300 section 8 contact orders were refused out of a total of 95,460 applications.

The Children and Families Bill currently going through Parliament will make changes, the clear theme endeavouring to reduce the level of dispute between parents when going through the court process to deal with children. Therefore, instead of the concept of a residence order (where a child lives) and a contact order (time spent with a child) there will be “a child arrangement” order, in an attempt to take away the suggestion of winners and losers. There is also the concept of “shared parenting”, the proposed amendment to schedule 1 inserting “a court’. to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare”. The danger here is that “shared parenting” suggests the notion of equal division of time, which clearly these changes are not intended to create. Each family is different and parents’ working patterns and other commitments show that presumption of equal time would be impractical and not necessarily in a child’s interest. Indeed, a child has their own life and is a person whose needs should be nurtured, not a parcel or possession to be carved out in terms of equal time.

It remains to be seen how this will work out in practice. There is a risk that from certain pressure groups such as “Families Need Fathers” the perception will mean that shared parenting is a “50% split of time”. On the other hand, the charity Rights of Women are concerned that in the child contact arena, orders are made which do not regard the reality of violence within the family before separation and the risk of unsupervised contact being routinely ordered to abusive fathers.

Over 25% of children experience family separation at some point in their childhood. Evidence shows that many children are badly affected by such events and these issues can last long into adulthood. It is, therefore, important that the legal system embraces the reforms and works alongside other agencies to ensure that children are helped to have meaningful relationships with both parents after separation.

Practical tips

• Be realistic. Life is never perfect and there will never be the perfect arrangement.
• Put the children first and promote a happy and stable childhood for them. Work out an arrangement that suit them and you as parents. Even if it is unusual, the children will accept it, if parents promote it.
• Keep communication lines open and civil. Concentrate on the issues to be decided, lay negative emotions to one side. Make joint decisions wherever possible. Children are damaged by ongoing conflict between their parents.
• Be flexible – children’s needs change and life brings unexpected challenges.
• Consider the court process as a last resort. It is imperfect and orders only endeavour to restrain bad behaviour by parents, they don’t promote good parenting.