Mediating Modern Families

Modern science has enabled many people to achieve their dream of having a family. Families now come in lots of different shapes and sizes, having trodden many different paths to parenthood.

As family structures have changed, the family justice system has had to adapt to ensure that every family’s needs, whatever their origin and makeup, are met, and that the children’s welfare is always at the centre of decisions being made.

There are a number of ways that mediation can assist modern families.

Planning to have a family

Mediation may be used by would be parents who wish to discuss their hopes and expectations prior to conception. This is likely to be most relevant for parents who are not embarking on a traditional family set up and wish to discuss a future co-parenting relationship as separate parents. This might be for a same sex female couple wishing to discuss expectations with a known sperm donor, including the involvement, if any, they will have during the pregnancy, upon birth and during the child’s upbringing. It may be assisting two single co-parents who decide to raise a child together living in separate homes or two separate, same sex, couples who decide to conceive and raise a child together across separate homes.

It is extremely important that parents understand the different options available to them in terms of fertility treatment and conception as this could impact on who is considered the legal parents of the child. Alongside legal advice, parents may wish to discuss their expectations in relation to the co-parenting relationship following the child’s birth. It is important to have discussed a) who it is anticipated the child’s parents will be; b) what they will call the other significant grown ups in their lives; c) the practical arrangements for the child; d) whether they will spend time with all of the ‘parents’; and e) financial provision so that expectations are managed and financial obligations are clear.

It is not currently possible to offer mediation to a couple and potential surrogate who are considering entering into a surrogacy arrangement given the limitations of the Surrogacy Arrangements Act 1985. We await details of the Law Commissioner’s recommendations in respect of surrogacy law reform and it may be that mediation is something that can be offered in due course prior to conception. If not, at least it is likely that surrogacy organisations will be able to facilitate discussions and lawyers will be able to provide legal advice.

The breakdown of a relationship

Even if careful thought has been given to the structure of a family and each parent’s expectations and obligations, it is not unusual for expectations to change over time and what is considered to be in a child’s best interests may not be the same as that which had been anticipated prior to conception. It is not possible to contract in or out of a relationship with a child and any decisions regarding their welfare will need to be taken at the time of any dispute.

Mediation may be an appropriate forum to discuss the arrangements following family breakdown.

The beauty of mediation is that it is a flexible process which, if the legal parents and those with parental responsibility agree, can involve partners, spouses and civil partners. This may be particularly useful in circumstances where, for example, a same sex female couple has had a child with a same sex male couple and the partners of the legal parents and / or any psychological parents have had significant involvement in the child’s upbringing.

Mediation is a forum within which the parents are encouraged to have the children at the centre of the discussions. As mediators we talk about what parents think will be best for their children, what their day to day experiences have been so far and what they believe they will think about the suggestions being put forward. We are also obliged to consider whether child inclusive mediation is appropriate in particular cases and it may be that a child inclusive mediator is appointed to discuss the process with the children also. Even if the children do not attend mediation, it is the mediator’s job to make sure that they have a voice and a presence in the sessions by asking the adults questions about them and how they may be feeling.

Finally, as part of mediation, we regularly explore whether other professionals should be brought to the mediation sessions or available to the children or parents alongside the process. It may be therefore be helpful in some cases for the children and / or the family to meet with a family therapist or experienced child psychologist to help unpick the complexities of what they may be feeling and to ensure that this is given careful thought before the parents reach any decisions which will have a profound impact on their children’s lives.

FURTHER INFORMATION

If you have any questions about the topic of this blog,  please contact Connie Atkinson or a member of our family team.

ABOUT THE AUTHORS

Connie Atkinson is a Partner in the family team and has experience of dealing with all aspects of private family work relating to both finances and children. Connie has expertise in cases involving: financial settlements; partnership, company and/or trust assets; international elements such as relocation and cross-border disputes; international surrogacy; arrangements for children; pre and post-nuptial agreements. Connie is a qualified mediator and assists as a mediator for clients in respect of all practical and legal issues surrounding family arrangements and divorce.