22nd Sep 2017

Protecting children during the divorce process

The latest episode of hit BBC drama Doctor Fosterexplored the potentially devastating affect separation can have on any children that are involved, focusing on the impact on the title character’s son Tom (plaid superbly by namesake Tom Taylor). Viewers saw a portrayal of the sense of loss, betrayal and bewilderment that children experience when a separation is bitter, contested and full of anger – a situation which is far from confined to television drama.

Stuck in a difficult situation

This sense of disorientation can be all too common outcome when parents are unable to concentrate on anything other than their own anger and feelings during the divorce process. The children can find themselves in a situation that is not of their own choosing and often feel forced to take sides or desperately try to be “fair” to both parents. Because the parents are full of their own fear and emotion, they are often unable to see or appreciate how their children may be silently suffering.

This can manifest itself in different ways. In the case of Tom, he was obviously depressed and, in the latest episode reacted badly to a situation with his girlfriend and ended up in a fight with his best friend. None of this behaviour had been typical of him before his parents had separated. As viewers saw, the Foster’s tried to work together to help their son, but in the end were side tracked by their own emotions and feelings and a meeting at the school to discuss Tom’s future ends up as a point scoring exercise against each other.

Focusing on the needs of children

So what can be done to make parents focus on the children and remember that they are not the only ones going through the heartache of separation? Well, legally there are no specific requirements in place. This is a reflection of a process spanning the past 30 or so years in which the Judicial System has slowly and inexorably been washing its hands of children facing Tom’s plight.

When I first qualified, a couple could not get a divorce finalised unless the Courts had specifically approved the arrangements for any children that were involved and this was not a rubber-stamping exercise. When the decree nisi was pronounced if there were children the judge would meet with the parents to consider the arrangements. The custodial parent had to be present and if the parents had not, by that time, agreed what was to happen with the children then they could not get their divorce. If both parents attended then the judge would generally approve the arrangements as long as they were sensible, but in every case that I went on the judge took the time to read the papers and was familiar with the intentions of the parties. In short, the Courts took a real interest.

The move a few years ago to drop the requirements for the meeting and, in the latest version of the divorce petition, remove the requirement for parties to supply details of their children (or even say if they have any) has greatly diminished this formal safeguard.

The current legal position

As it now stands, if there is a dispute about the arrangements for children, the parties must be assessed for mediation. I am a fan of the mediation route – in cases where the parents are sensible and are still able to talk to each other, it is the ideal forum for providing a solution. However, it is important to remember that such a situation will not be right for everyone and mediation will not be suitable where one or other (or both) of the parties are still full of the anger and hurt that they feel against their former partner – mediation would certainly not be suitable in the case of the Fosters!

The only option then left is the Courts and an application for a Child Arrangements Order, a system which again is facing cut backs. CAFCASS – the Court advisory service which the judges rely on to provide them with detailed information about the parties, children and the general situation in a case – is under huge strain. It is now very reluctant to provide the reports that the Courts need, so justice is often arbitrary. This is not the fault of the Court, rather that of the system.

In many cases cuts in legal aid mean parents are no longer able to afford legal representation. To my mind, this is a false economy. Lawyers have built up considerable skills in cases of this nature and two sensible legal professionals can very often resolve a dispute without ever needing to go to Court. They’re in a position where they can tell their clients home truths if needed, something a judge often cannot do. Therefore, cases that would have been settled by lawyers are now ending up in the Courts simply because the parties cannot get any form of legal representation. These clog up the system with people who are unfamiliar with the process and do not understand the approach that courts will take.

Focusing on the future

So, other than more money and resources being placed into the system, what is the answer? Ultimately, the onus must fall on the parents. Those going through separation, a very painful and difficult time for anyone, need to step back occasionally and think about any children that are involved. They need to ask themselves what are their children feeling and have they truly, objectively considered their child’s needs? Some form of counselling may be very helpful – possibly nothing more than a discussion with a suitably qualified professional to help them put their thoughts in order and to ensure that they are doing the right thing by their children.

The costs are relatively small but the savings are great and of course, as case with the Fosters demonstrates the furthest reaching costs are not just financial, but emotional too.

Described in industry directories as "a top collaborative lawyer", Stephen Root is a Director and Family Lawyer at Berwins with over 30 years of legal expertise. 

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