Children first – 10 tips for protecting children from the fallout of separation

This week sees the launch of a campaign by the Positive Parenting Alliance, a newly-formed grouping of leading (and fantastic) parents organisations, relationship charities, those who work with children in the sphere of parental separation/mental health and some parents who have been through separation themselves.  It aims to start a wider conversation in society about separation and divorce with the hope that, over time, there will be a change in culture and a reframing so that children’s needs come first when a relationship ends.  

Central to the campaign is the Parents Promise – a statement of principles by parents, during happier times, about how they would aspire to approach co-parenting and child arrangements if ever their relationship ended. As the family lawyer member of the Alliance, part of my role has been to consider how lawyers may do more to help reduce conflict. However there is so much that parents can do to achieve that themselves.

As a family lawyer and mediator with 25 years’ experience, I have seen many parents who have had an amicable separation and truly put their children first; but sadly I have seen many who have played out their adult disagreements/anger with each other in the family courts over months or even years, often to the longer term detriment of the children caught in the cross-fire.  Those children all too often suffer mental health issues, perform badly in exams, turn to alcohol or drugs, struggle to form adult relationships themselves, etc etc, as a result of their parents’ acrimonious split.

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The court statistics also make for grim reading.  It is clear that (a) more and more separating parents see court as the default option – there has been an upward trend in applications for child arrangements orders since 2014, with almost 56,000 applications made in 2020 affecting around 100,000 children; (b) because of this deluge, cases are dragging on for ever longer – they took on average 39 weeks to conclude in 2020, a staggering increase of 11 weeks in just a year.  That means that if you start a court application for child arrangements you won’t get a conclusion for 9 months, a lifetime for a child. The Family Solutions Group’s report What about me?, published in November 2020, referred to a system in crisis, with unmanageable numbers of parents making court applications and a need for radical reform which will take time.

With all of that in mind, I set out my top 10 tips for parents thinking about or going through separation, with the aim of reducing conflict and putting the children first :

1. Have a conversation during the good times about how you would want your children to be co-parented if ever you separated

Many people have a Will to say what will happen to their estate when they die; many others have a pre-nuptial agreement setting out financial arrangements if they divorced; yet very few parents talk about what child arrangements may look like if ever they separated.  The Parent Promise is central to this.  While you will never be able to nail down detail until you separate – child arrangements will depend on many factors at that time – agreeing some big picture principles in happier times will act as a good compass for choppier waters on separation.  One of the difficulties for family lawyers is that at the moment these conversations only start at the point of separation, which is the worst time to be having them – one parent may be angry and raw about the recent end of the relationship, or upset and unable to process what is happening, and they may make suggestions about child arrangements which punish the other parent, rather than thinking what’s best for the children.  Even if your ex has had an affair, or chosen to leave for another reason, that is between the adults and does not make them a bad parent. 

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2. Agree a script for what you are saying to the children about the separation & maintain effective communication

Telling your children you are separating will likely be a conversation they remember forever and it is vital that adult emotions be put to one side. Ideally you will speak to them together, but if you feel you can’t, at least coordinate when each of you will be speaking to the children and agree what you are saying. The content of the script will differ depending on the age of the child, but broadly :

• Speak to the children calmly and give them information they need. They don’t need to know whose decision it was to leave, or how you’re feeling about it.
• Most children have practical questions such as where they will be sleeping, whether they will need to change school etc. Try to explain what will change, and reassure them about what will stay the same, from their point of view.
• Reassure them that it’s not their fault and that mum and dad still love them very much.
• Let them know they can talk to you again, or ask questions, but don’t force them to. Often follow-up questions come up at a relaxed moment such as when the child is kicking a football around the park, rather than forcing them to talk to you again in a more formal setting.

After that initial conversation, maintaining good communication during your children’s childhood is important. Ensuring you both know about e.g. any important schoolwork that needs completing, medication your child is taking or any extracurricular activities in the diary means they can pass seamlessly from home to home. Competing to make that dentist appointment, refusing to give medication your ex has got for them and leaving all of the homework for the other parent will just lead to a stressed and unhappy child.

3. Never use your children as a weapon

Sometimes the parent who feels wronged at the end of a relationship may try to restrict or stop the children’s time with the other parent as punishment.  Sometimes the wronged parent presses for full “custody” (now called a “lives with order”), even though they may not have good (child-focused) reasons to do so.  Over time behaviour may worsen – a parent exploiting grey areas in the arrangements, or doing all they can to stop a child from having a relationship with the other parent.  Try to put emotions to one side and focus on what would genuinely work best for the children (recognising that this may be a case of trial and error), not using them to punish each other. Children deserve to have a relationship with both of their parents. You’ll need to flex the arrangements as the children grow and their needs change, and over time their own views will also be important.

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4. Don’t micromanage the children’s time with the other parent  

This is a common theme (and source of friction), sometimes driven by genuine anxiety, sometimes by one parent feeling that they are the more important parent and are entitled to dictate every detail of the children’s lives.  If the children are to be with dad for a few days, mum shouldn’t be organising activities which clash with that time but should leave dad to plan the time as he wishes, and vice versa.  Of course this needs to be child-focused; if for example the birthday party of a friend of the child falls on one parent’s time, or there are regular ballet classes or football coaching, both parents should try to accommodate the child’s wish to attend.

5. Contain your emotions/feelings about the other parent when around the children

I’m constantly amazed by reports of children turning up for contact and repeating negative comments that the other parent has made about their ex, their ex’s family or new partner.  Whether deliberate or accidental, the effect on children of hearing these things is the same – they will feel conflicted and even disloyal to the parent saying those things by wanting to spend time with the parent being criticised.  In the longer term this can lead to fractured relationships.  Whatever your feelings about your ex, don’t express them to the children, who should know they have the right to love both of their parents unconditionally.

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6. Support the children’s relationships with wider family (and yes, even with your ex’s new partner)

This can be a sensitive topic.  I have seen parents get cross if they find out that the other parent has left the children in the care of e.g. their grandparents for a night, or not be supportive of time with wider family.  But it’s so important for children to have those extended family relationships, on both sides, and for arrangements to allow for that.  More tricky still is where there is a new partner.  The parent in a new relationship needs to be sensitive – not introduce the children to a new partner without first telling the other parent and giving them an opportunity to meet, not rushing the introduction if the relationship is quite new and may end, and ensuring that plenty of time is made for the children without the new partner being there, at least for the first few months.  On the part of the other parent, human instinct is often to be angry (especially if you feel that the new partner has played any part in the breakdown of your relationship) and resist that person meeting the children at all.  There needs to be a common sense, middle ground, joined-up approach, so that the children know they can talk to you both about any questions they may have and an introduction is made after the parents discussing and planning for it.  Some children are very upset when a new partner comes on the scene because they may realise finally that their parents really aren’t going to get back together; this is a time for coordinated support, not bickering.

7. Take a deep breath and know that children are resilient 

I have many cases where one parent stands in the way of contact, or wants it to build up very slowly over a very long period, because of objectively pretty minor concerns such as the other parent not having changed a nappy before, or not having taken the child away on holiday before alone.  The reality is that on the whole children are pretty resilient and parents learn quickly.  Be practical in offering solutions rather than creating blockers – offer (without imposing) a list of instructions about the detail of the child’s day with naps, mealtimes etc.  For a first holiday, perhaps another relative or family can be present.  Last weekend I took my 4 year old niece away on my own, for the first time; I was terrified that she would see through my lack of parenting prowess and that she would be scarred for life, but we muddled on through (with detailed instructions from her mum and lots coming from my niece herself) and despite (or perhaps due to) feeding her a diet of ice cream and crisps for two days she had a wonderful time.  Most parents manage.   

8. Even if you’re feeling anxious about child arrangements, try not to let that rub off on the kids 

Often the wheels begin to come off arrangements because of an over-anxious parent who lets their feelings rub off on the child.  This can be e.g. by having prolonged, exaggerated goodbyes at handover to the other parent, which invariably lead to younger children becoming clingy, distressed and not wanting to go to the other parent (tip – just hand over the child and retreat quietly and quickly, as you would on a nursery drop-off); by making a point of saying things like “don’t worry, only 2 more sleeps until you see mummy again!” at handover, instantly creating worry in the mind of the child about what the next 2 days and nights hold in store; or by insisting on regular FaceTimes even during only quite short periods with the other parent.  All of this inevitably rubs off on the child and causes them to act out and start thinking that time with the other parent is a burden, something to endure, not enjoy.  This goes back to point 7 – kids are resilient.

9. Know that going to court is not a silver bullet

It is rare for me to tell people that court should be the starting point, yet all too often parents who don’t take legal advice (and, understandably, many don’t) think that court is the answer.  Sometimes people think that if they issue a court application the other parent will back down (tip – they rarely do); or that if they go to court, the judge will agree 100% with their case (tip – the answer is often somewhere between your two positions). The reality of court is very different from people’s perception – a slow process; one that pitches parents against each other in a way likely to cause long-term damage to your parenting relationship (there is nothing like writing a statement setting out all your criticisms about your ex, for ensuring that you will never likely be able to be in the same room again even when it is a happy occasion for your child); and invariably unsatisfactory outcomes for one or both parents.  Court can’t solve all the difficulties in the parenting relationship either – sure, it can set the child arrangements, but can not help you communicate better as parents.  A judge can’t address practical difficulties you may be having, which may stem from the two of you having different parenting styles/values/approaches towards boundaries, issues which are far better worked on in parenting therapy. Evidence shows that court-imposed outcomes are less likely to be followed than plans you agree. Far too many cases are going to court and judges are beginning, rightly, to encourage those which are just about straightforward child arrangements to go to mediation instead.  In most cases (but not every case), you should view court as a last, not first, resort. 

10. Understand that a cookie-cutter vision of a good separation is not a “one size fits all”  

It would be wrong to give the impression that every case can be resolved without court or that the Parent Promise is right for every couple. 

• Sadly many cases involve domestic abuse and the court will likely want to undertake its own assessment of what is safe for the child before making any orders; mediation is unlikely to be suitable for these cases.
• In other cases, one parent may be denying the other parent any time with the child, in which case it is sensible to start court proceedings given how long they take, but perhaps with mediation happening in tandem to try to understand and address the blockers in the mind of the parent denying contact and agree something. 
• A parent experiencing the other parent routinely breaching an Order should of course seek the court’s help.
• Some cases may involve quite binary decisions which cannot easily be agreed (e.g. where one parent wants to move abroad with the children on separation and the other opposes). 

The point is that too many unmeritorious cases are reaching the family courts at the moment – one example last year was a couple arguing over which junction of the M4 should be the place for contact handover – and that slows things down for the more serious cases which need court time.  They should be the priority, for children’s sake.     

Jo Edwards – Partner and Mediator, Forsters LLP, and founding member of the Positive Parenting Alliance

12 May 2021

Resources –

The Parents Promise website https://www.theparentspromise.org.uk/

Forsters’ podcast Breaking Good, episode 3 – “Children & separation – all you need to know” (co-hosted by Marcus Brigstocke) https://www.forsters.co.uk/news/podcasts/breaking-good-podcast-children-and-separation

CAFCASS parenting plan https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parenting-plan/

101 questions answered about separating with children https://www.onlymums.org/information/101-questions-answered-about-separating-with-children

Resolution resources –

separating with children https://resolution.org.uk/looking-for-help/parents-children-the-law/

alternatives to court https://resolution.org.uk/looking-for-help/splitting-up/your-process-options-for-divorce-and-dissolution/

Relate tips for telling the children about your separation https://www.relate.org.uk/relationship-help/help-separation-and-divorce/talking-about-separation/telling-children

Family Solutions Group’s report, What about me? Reframing support for families following parental separation, November 2020 https://www.judiciary.uk/wp-content/uploads/2020/11/FamilySolutionsGroupReport_WhatAboutMe_12November2020-2.pdf-final-2.pdf