How Can We Stop Parents Scrapping Over Children

Nearly one in four children in England and Wales live in one-parent families. Thankfully, most parents who separate make arrangements that meet the needs of the children without involving the courts at all. But a growing number make applications to the courts for orders regulating where their child should live and the pattern of contact with their non-resident parent.

Between 1992 and 2002 the number of residence orders made in England and Wales rose from 16,424 to 30,006 and the number of contact orders increased from 17,470 to 61,356. This is a disturbing trend.

The Solicitors Family Law Association has been committed to minimising conflict between separating parents for more than 20 years. We played a leading role in developing mediation to settle family disputes and, through our code of practice, we promote a constructive approach that encourages parents to resolve their differences outside the court system wherever possible.

Many of these applications, we believe, could be avoided. Our report, Practical Steps to Co-parenting, makes a number of recommendations that we hope will help to improve the legal framework for dealing with parental disputes. There is no magic solution to some of the difficulties faced by families caught up in legal disputes over children. The challenge of solving many of the toughest problems often falls outside the scope of the courts and related more to continuing bitterness between couples after their relationship has broken down rather than to issues capable of judicial resolution.

Only a small number of difficult and intractable disputes come to the public’s attention. The cases are not representative of the vast majority but are at the extreme end of the spectrum. Media coverage and campaigns based around them have resulted in an unbalanced debate on parental “rights” rather than the wellbeing of children.

However, there are a number of reforms that would help to resolve disputes quickly and, we hope, prevent many arising in the first place.

• There should be a statutory presumption that children should have a continuing relationship with both parents unless there is a clear reason why this would not be in their interests. This addition, with a change to the legal language of “contact” and “residence”, would help to make it clear to parents what is expected of them.
• Co-parenting, where both parents offer physical, emotional and financial support to the children, must be in the best interests of the child other things being equal. The reality of a situation where one parent is effectively the main day-to-day carer of the child should be taken into account in resolving disputes over where a child should live. No one form of parenting arrangement should be seen as superior to any other.
• The child should not be seen as a “timeshare” but an ideal co-parenting arrangement should result in the child feeling comfortable in both parents’ homes. A typical arrangement might be for children to live at one parent’s home and to spend alternate weekends, a mid-week visit, alternative festive occasions and extended time during the school holidays with the other parent. In the absence of unusual factors, it is difficult to envisage less than this being appropriate. This arrangement may, however, be unsuitable for very young children, teenagers and for parents who live some distance from one another.
• A range of information should be available to separating parents early on to equip them with information on what a court would decide in the event of a dispute. Parenting plans should be agreed and should replace the statement of arrangements for divorcing couples.
• For couples who cannot reach agreement on their own, there should be a swift and effective dispute resolution process.
• An application to court should trigger a compulsory intervention appointment. To ensure that this is taken seriously and used to its fullest extent, this should be a court-based service. If disputes can not be resolved, there should be a report to the court explaining the reasons. All disputes should be resolved through a defined process lasting no longer than 17 weeks. There must be a consistent approach to handling cases, with the same judge hearing all stages to promote continuity and to avoid delay.
• There should be an early method of identifying safety issues. The courts should apply a mandatory risk-assessment checklist. An allegation of domestic abuse or an application to suspend time with the other parent should lead to an accelerated hearing so that the facts can be established quickly.
• Children should not be dragged into their parents’ dispute and should not attend court. There should be a separate process to ascertain the child’s wishes and feelings without him or her becoming directly involved. It is the parents’ responsibility to resolve the disagreements, not the child’s.
• Where the court has made an order for the benefit of the child there is no excuse for either parent refusing to comply with the order. Breaches of a court order are extremely serious and must be dealt with speedily.

The enforcement of court orders should be through a staged process that starts with a therapeutic approach that enables the parents to understand the value to the child of a relationship with both parents. The stages should become increasingly punitive in order to enforce compliance. A wider range of orders should be available including final community service orders and imprisonment. Moving the child to live with the other parent or instituting care proceedings should be a final resort where other attempts have failed.

For further information email Kim Beatson or call 020 7940 4060.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*