It seems that more parents are going to court with disputes over the care of their children after relationship breakdown. The most recent statistics show that in October 2016 Cafcass received referrals in a total of 3,505 new private law cases about children – that is, those where the local authority had not initiated proceedings. This figure represents a 9% increase on cases received in the same month the previous year, and wider statistics indicate a 23% rise in cases from two years ago.
The government has been pushing mediation hard for separating families, including by removing legal aid for all processes except mediation, and yet we are still seeing more court applications, with all their attendant costs and stresses. We are not sure whether the rise in court cases means that mediation isn’t working, either because people aren’t interested in resolving disputes between themselves so don’t consider it, or because it is not enabling parents to reach lasting agreements, or because it’s not appropriate in certain circumstances? It may mean the system that gives people a chance to investigate mediation isn’t working: so when parents are considering a court application, they don’t attend their compulsory meeting with a mediator to talk about options and aren’t aware there is another way than court.
Societal change may be a factor. We wonder if there is now a greater expectation of the involvement of both parents in active parenting, which may see working parents look to play a bigger day-to-day role in their children’s care after divorce than they would have done in the past, in efforts sometimes resisted by the other parent causing disputes, and sometimes a breakdown in contact with the children. In some circumstances, we see that one parent may have an expectation that they will have the primary care of the children half of the time after their relationship breaks down, where the other doesn’t agree. Particularly where the parents have been married, the legal language of ‘sharing’ – whether it is the family wealth or the care of the children – seems to have passed into a false belief that a 50/50 split is automatically fair, as if it were a question of slicing up a victoria sponge. The problem is, children aren’t cake.
A change in the legal terminology in April 2014 to talk about ‘children’s arrangements’ rather than ‘contact’ or ‘residence’ for children may have affected expectations about whether and where a child should have a permanent home after parental separation. There is also now a clear legal expectation that both parents after separation should continue to play a role in children’s upbringing so long as it is safe for them to do so, which is laudable, but may have been interpreted as promoting shared care whereas there are many other ways for parents to be and remain involved.
Psycologists have done a lot of work over the years about attachment patterns and disorders in young children, for example, the writings of Bowlby , and Leach. Attachment theory states that for young children in particular, it may be harmful to disrupt a secure relationship with a single primary carer by regular time away from them, whether that carer is the mother or the father. A few years ago an Australian study focusing on the effects of shared care on young children came to light indicating that, for the under 4s, having one primary home was more beneficial than shared care.
The question of how it feels for the kids is always a difficult one. Often children feel a pressure to be fair and not to choose, meaning that they may tolerate challenging situations devised by their parents, eg one night here one night there, or a week with one then a week with the other, when we as adults – if we were honest – might struggle to live that way in the long term ourselves. There may also be financial repercussions of choosing an arrangement where children live with both parents – the need for two ‘family’ houses rather than one after divorce may lead to financial pressure in both households, and family relationships may suffer as a result. On the other hand, other children, particularly older ones, may like this sort of arrangement and thrive within it.
Cafcass is the body tasked with hearing children’s voices in the court process, although it is confined in many cases now to a safeguarding role rather than able to do a proper investigation of the children’s wishes and feelings. So what would the court do, at least until the children will vote with their feet? Most magistrates – who are the judges who tend now to hear child arrangements cases, rather than the more specialist district judges – understand that the law hasn’t fundamentally changed, and neither has child development. It remains most common, where there is a dispute between parents, to order a ‘traditional’ pattern of child arrangements where the child lives with one parent and sees the other on alternate weekends and one overnight during the week, perhaps with shared school holidays. It is quite unusual to be successful in a court application for 50/50 shared care of children, because the courts do not generally tend to consider it to be in the best interests of the children involved, unless there are specific reasons why it would be for the particular children involved.
Each child is different – even within the same family – and each is unique. Court is not the only way to resolve a dispute. Using mediation or collaborative law puts you jointly in charge of your own and your children’s arrangements, and if necessary a children law arbitrator can make a quick and binding decision in your own circumstances, protecting you and your children from the delays and uncertainties of the court system.
If you have any questions about what you have read here or children’s arrangements after parents separate, you can call us on 01223 443333 and make an appointment to speak to Adam, Sue, Gail, Simon or Tricia. If you’re interested in using mediation to sort out a family dispute, you can call Suzy on 01223 224384 for an initial discussion.