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Europe > England Wales > Family Law > Children > Residence custody and Contact Access issues

Overview: Family Law, Children

Parenting through Parting

Things change for our children and for us as their parents at the point of separation. The change is not necessarily bad – of course life is more complicated and there are more challenges for children whose parents live apart. However, where each parent is able – in time – to become happier and thus better able to address their children’s needs then there are significant upsides too.

Those helping their children come through this stage well have an awareness of the two main aspects that are engaged at separation:

  • The legal dimension: What the courts tell us are our children’s rights and our obligations as parents towards our children; and
  • The relationship and developmental aspects: The light that is thrown onto the business of creating a good transition and longer-term family structures by research into childhood and development, communications and family systems theory.

The purpose of this note is to share at an early stage some of the basics.

The legal dimension

Law operates as a safety net for parents who can’t agree structures that will best meet the needs of their children. The key strands in that net are the following:

1 Jurisdiction: which legal system decides?

Where children and their parents are based in England and Wales then it is usually English legal principles that will apply, administered by one of its courts. Where they are based abroad (“habitually resident” in another jurisdiction) then it will be that country’s courts that makes the decisions

2 Protection: what steps does the court take to protect children

Each local authority has a responsibility to protect the children in its area and there is a whole series of arrangements by which a child might come to the notice of a local authority. Only in extreme circumstances and when there is no alternative will an authority intervene, ultimately by taking the children into its care.

However, protection is also provided by the general law, in that

  • Children may not be permanently removed from the UK without the permission of both parents or the approval of the court. Where this is breached, often a criminal offence is committed.
  • Children have a right to be safe and the court will be swift to intervene to make orders for a child’s safety.

3 Parental responsibility: how does the court view the rights and responsibilities of parents towards their children ?

Each parent is equal in the eyes of the law. Generally each has parental responsibility, which refers to all the rights, powers, duties, responsibilities and authority which a parent can have in relation to a child. Parents should consult over decision making unless this is inappropriate (for example, there is an emergency).

4 Non-intervention:

Generally the court does not intervene unless asked – and even then will only be able to make orders if doing so is better than not doing so

5 Best interests of the child:

If it comes to intervention, then the court must impose the outcome that is in the best interests of the child – that is the sole criteria for identifying what steps the court is to take.

6 The welfare checklist:

And when the court is trying to work out what is best for each child, there is a list of the things that it must consider.

  • The Child: his/ her/ their:
    • Wishes, feelings,
    • Physical needs, Emotional needs, Educational needs,
    • Age, Sex and background
  • The effects of change,
    • Any harm s/he has suffered; and the harm s/he is at risk of suffering
  • How capable are each of the parents in meeting the child’s needs
  • The powers that the court has.

7 Growing independence and increasing say:

On the list are the wishes and feelings of the child in the light of the child’s age and understanding. What follows from that is that as children become older their voice should be given increasing weight in the assessment process.

8 The powers the court has to manage its interventions:

Also to be kept in mind is the range of powers that the court has by which to pursue the goal it seeks. These are often more limited than might be thought ideal. It can make orders about:

  • ž Where a child is to live (the Residence order)
  • ž How contact with the non-resident parent is to take place (the Contact order)
  • ž One-off issues – for example where a child will go to school (the Specific Issue order)
  • ž It may also make a Prohibited Steps order restricting how a parent exercises his/her parental responsibility.

It may attach conditions to any of these orders.

Why doesn’t the law help?

The court process is slow and expensive. It delivers a set of outcomes that are likely to be fixed until there is the next court application and this does not fit well with the rolling and evolving nature of children and family relationships. Further, the process is fallible – the court may not identify the outcome that would suit a child best. Even if it could identify the outcome that would be best, it may not be able to secure it because of the blunt tools it has to make orders. The law can help decide big issues one way or the other but it doesn’t really help parents navigate their children through the challenges of their upbringing – that would be a challenge even in one household. It simply becomes a different set of challenges when there are 2 but is likely to be particularly hard where the parents have difficulties working together. Time and time again, we identify the legal structures only to discover that they are not helpful to map out a particular child’s future. Best will often be a question of whether parents get help and are then able to reach agreement to achieve a consistent approach. Where this is done then children can have a positive childhood and grow up blossoming in a more complex but richer environment.

What is needed?

Parents who have managed their separation well and are managing their children’s upbringing well will usually have addressed well the following ten tasks:

1 The parent his/herself

We can only parent our children well, if we are in a good place to do so. We need to attend to ourselves and get the support we need, in particular to manage the trauma of the end of a relationship.

2 Safety

The non-negotiable for every child is ensuring his/her safety from emotional and physical harm and all of the other ten principles are subject to this over-arching requirement

3 The parents’ relationship

Where our interactions with the other parent are driven by our own needs based in the history of the relationship, we are going to struggle to achieve the sort of relationship that will mean that the children’s needs can be addressed well, by parents continuing to work together as a team. Even where the other parent cannot do this, we still need to steer the steady course that is focused on the child’s needs rather than allow the child to witness tit for tat exchanges.

4 Principles

As the separation takes place and over the early period, a range of principles are likely to come to the surface that will operate as anchors to manage the many challenges as the child grows up. These are likely to include:

  • Maintaining proper boundaries – so that the child is not burdened with adult issues
  • Being honest with the child over the issues that do concern the child
  • Being in the child’s shoes and understanding their position, which will include recognising the difficulty for the child of seeing conflict between the parents
  • Being relentless positive about the other parent

5 Informing the child

Good management of the discussion where the child is told of the impending separation is important. Parents doing this well will, where possible share the information together and will be clear:

  • About their love for the child and that they will always be his/her parents and whatever their differences will continue to prioritise the child’s needs
  • That the separation is not the child’s business and is not their responsibility or fault.

6 Staging the separation

How the separation is staged will be the child’s first experience of how separated parenting is going to be. Doing it well, with proper information, good timing and joint management and positivism can deliver particular benefits.

7 Goals

Many parents have found it helpful to pause and consider what sort of childhood they want their child to be able to look back upon. It has helped them to be clear about what to promote and what to avoid – it has informed the principles (point4 above) by which they roll forward with their parenting.

8 Good arrangements

… such principles also provides a means of assessing different options to structuring the child’s arrangements between the two homes and how important times (holidays, Christmas and birthdays) are to be structured. It is all too easy to sink into ideas of who was to blame for the end of the relationship and have the arrangements fed by that sense rather than what would work best for the child.

9 Family story

Increasingly parents are recognising the value of an information black-out (so far as is possible to achieve) until they are able to create an appropriate story that helps the child to make good sense of their position and enables the wide context of family and friends to continue around the family rather than being polarised into different camps on one parent’s side or the other. Often third party help is particularly important here.

10 Issues and

11 Changes

Families don’t stand still – anticipating the challenges coming up – perhaps exams, perhaps introduction of new partners – will help parents to manage those challenges as well as possible and enable the child to make the best of their situation. Too often it is easy to be bounced into immediate (sub-optimal) responses.

12 Implications

Looking back on these first 11 tasks gives a sense of how a child’s needs might best be addressed. It therefore provides a good leaping off point as regards how the other aspects are to be addressed

Parenting well through separation and its aftermath is not instinctive and carries with it particular challenges. We are not a poor parent where we feel that we are not doing a good job – but it may be that we need further help and ideas. For example:

Last Update: 2013-Jan-14 Elizabeth Fletcher - Family Law in Partnership
The contents of this page do not constitute legal advice or create an attorney- client relationship with the contributor. Do not apply anything you read here without contacting a professional.
Author: Elizabeth Fletcher
Law Firm: Family Law in Partnership
Address: 1 Neal St
Covent Garden
United Kingdom
Telephone: +44 (0) 207 420 5000