Avoid courts to lessen the pain of family break-ups
In line with Resolution’s Good Divorce Week 2020 campaign, we address in this blog some of the key themes and recommendations of the FSG Report which you can consider and potentially implement now with the aim of achieving a ‘good’ divorce or separation. Our head of team at Kingsley Napley, Charlotte Bradley, is a member of the Group and contributor to the Report.
During separation, it is quite easy to forget about the impact it can have on any children of the relationship. Children’s wishes or feelings can often be overlooked when parties are focused on court proceedings, the practicalities of separation or sorting the finances.
In the webinar for the launch of the FSG Report, Dr Jan Ewing explained that for children, being listened to and being involved in decisions regarding the time they will spend with both parents promotes positive relationships,improves cooperation between parents in the long term and can even be a cathartic experience for the children. The recommendations of the report are that children over 10 years old should have their voices heard in all proceedings or processes concerning their care or arrangements. The idea being that having some form of investment in and ownership of the decisions made about your life makes them easier to adjust to. The report states that children should also have access to information and resources which help them to express their wishes and feelings.
It is important as a base line that children should not be leveraged and should not be exposed to any proceedings (for example, they should not be around for conversations with your lawyer). They should however be listened to and their best interests should be placed at the centre of all decision-making on separation. You should also consider whether the children would benefit from professional support and whether it would be helpful to seek out resources on how best to approach telling the children about the separation.
As Helen Adam, the chair of the FSG explained at the webinar, when a relationship comes to an end, it can be a very distressing time for one or both parties. The transition from a couple relationship into a separated but functioning cooperative-parenting relationship (which most importantly works well for the children) is complicated and will take time and commitment.
The recommendations of the FSG Report are for the creation of bundled support packages, centralised banks of information for parents and programmes to help parents move on and co-parent in an effective way. While family lawyers have become accustomed to assisting clients through difficult periods, you should consider seeking additional specialist support from a counsellor, therapist, coach or parenting specialist. This support can be crucial to help you work through the emotional impact of separation, deal with the practicalities and help you to move forward. Family lawyers work with a range of different professionals and can signpost you to those relevant to you.
The report makes clear that frequent, tense and poorly resolved conflict is likely to lead to negative outcomes for children. As parents we spend a great deal of time ensuring that our children have the best of everything. We make sure they have a healthy diet, that they attend the best schools and we wrap them up warm on a frosty winter morning so they don’t catch a cold, yet we can so very easily (and in most cases unconsciously) slip into a pattern of behaviour where they are exposed to and regularly witnessing parental conflict. Conflict comes in many forms and is not just raised voices and arguments, the seemingly more subtle and less outwardly aggressive forms of conflict are equally as harmful. We know that unresolved parental conflict is hugely psychologically damaging to children and can result in impaired relationships with both parents which lasts well into adulthood and can impact their long term development. Patrick Myers, Senior Ambassador for the DWP Reducing Parental Conflict Programme, warns of intergenerational transmission where children who suffer as a result of unresolved emotional conflict between their parents go on to repeat the behaviours of their parents and the cycle continues.
As noted by the President of the Family Division, Sir Andrew McFarlane, in the webinar, the current statistics suggest that around 40% of separating couples turn to the court to resolve their conflict, whether that is regarding the finances or the children, and is indicative of an over-reliance on an adversarial process.. Court proceedings can be damaging, both financially and emotionally, and should be reserved only for matters where a party or child needs protection and seen as a last resort. That said, there will always, unfortunately, be cases where court is the only option and of course, where there are safety concerns (also known as safeguarding issues) then the court’s involvement will be necessary.
Instead, as recommended by the FSG Report, a holistic approach should be taken – drawing support from therapists and other professionals, with all the information and programmes available to you, and considering all potential methods of resolving conflict. These methods are, for example, mediation, arbitration and collaborative law, and any hybrids of these, which can offer a faster, cheaper, more private and more dignified way to reach agreement with your ex-partner, without turning to the court. As noted by Mr Justice Cobb, chair of the Private Law Working Group, in the webinar, this is part of the culture change which is needed for how parties approach resolving issues.
Anyone who is considering making an application to the family court must (unless there is an exception) attend a Mediation Information and Assessment Meeting (MIAM) with an independent family professional which provides information about the alternatives to the court process. You should engage with the process as fully as possible and ask as many questions as you need to make sure you understand your options fully and whether there is a more constructive way of trying to resolve issues.
Resolution’s Good Divorce Week this year focuses on the Resolution Code of Practice for family lawyers. Lawyers who sign up to the Code agree to abide by rules which emphasise a constructive and collaborative approach to family issues and encourage solutions that take into account the needs of the whole family, particularly in the best interests of any children. The FSG Report has recommended that enforcement of the Code should be more robust and lawyers should be held to account in their approach and practice.
The report states that parents need to work together with a shared definition of what is in their child’s best interests and parents should find lawyers who will support them in this aim. Another important theme arising from the report is that lawyers hugely underestimate the impact and influence they have on their clients and the path they take and this of course ripples outwards to the wider family and most importantly the children. When children are not placed at the front and centre of both the parent and the lawyer’s thinking, the impact can be devastating, leading to poor psychological outcomes, including a confused sense of self-image and a lack of security. This can lead to a myriad of further emotional and psychological issues which may stay with children well into adulthood. Of all the hopes and dreams you may have for your child’s future, this will not be one of them.
Divorce or separation is a very personal matter and so the lawyer advising you should be someone who listens to and fully respects your views and objectives, balancing the emotional and financial costs with what you want to achieve. They should explain all the options and give you confidence to make the right decisions, and help you focus on what is important in the long-term, managing your stress where possible. You should therefore ensure you are instructing a lawyer who demonstrates these attributes. As the client, you have the option of ‘shopping around’ to find the best fit for you.
Resolution is an organisation of lawyers and other family justice professionals who are committed to following a non-confrontational and constructive approach to resolving family issues. The Code of Practice promotes a constructive approach to family issues and considers the needs of the whole family, in particular the best interests of children.
Each year, Resolution campaigns on a policy issue that is close to the heart of the membership of family justice professionals. This year, Resolution are focusing on the Code of Practice.
The report “”What about me?” Reframing Support for Families following Parental Separation” was published on 12 November 2020 by The Family Solutions Group (FSG), a subgroup of The Private Law Working Group. The report focuses on improving the experiences of separating families before any application to court is made. It recognises that many parental disagreements about children following separation are not legal disputes and require other non-court approaches, focusing primarily on the needs of the child.
Members of the FSG, and Kingsley Napley, hosted a webinar on 18 November 2020, where they highlighted their recommendations and the way forward.
If you are interested in finding out more about the FSG Report or how we can assist you, please contact a member of our family team at Kingsley Napley.
Olivia Stiles is an Associate in the Family Team. Olivia works on a wide range of private family matters, including;
Liam Hurren is a trainee solicitor at Kingsley Napley and is currently in his first seat in the Family team, supporting the team with all aspects of financial and private law children work.
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