It is said that today, Tuesday 30 June marks the 100th day of lockdown. [I take issue with that, by the way; the first FULL day of lockdown was Tuesday 24 March which, by my reckoning, gives tomorrow that mantel. PoTAYto/poTARto]. Either way, it is some milestone, even if confusion reigns about the day on which it is reached and indeed what sort of lockdown we are presently in.
Over the past 100 days, with the daily commute suspended in place of working from home, there has been barely a day when I haven’t explored my home town, Brighton on foot. In truth, in 10 years of living in Brighton I haven’t spent as much time on its streets and beaches as I have in the past 100 days. Those who follow me on Twitter will know that I have posted a LOT of photos (and taken countless more).
So as we approached 100 days of lockdown, I looked back over my photos and reflected on lots of things – what glorious weather we have been fortunate to have for the most part; the fabulous sunrises, sunsets and strawberry moons; and how wonderfully peaceful Brighton has been. With the gradual easing of lockdown and especially with the hot weather latterly, there has been a return to crowds, some anti-social behaviour such as littering and a clear divide between those who are anxious about a second wave of Covid and those for whom social distancing is, in effect, out of the window.
Like many I suspect, I approach the next phase with a mixture of feelings – a keenness for a return to normality tempered with hope that we will keep some of the best bits of lockdown – not least a return to family values, emphasis on wellbeing and the positive effects on the environment of us travelling less far and widely. And more than anything, I am looking forward to getting my hair cut.
A photographic chronology of 100 days of lockdown, peppered liberally with my Twitter ramblings and a reminder of some key lockdown milestones, follows.
Monday 23 March – day 1
After weeks of pressure, Boris Johnson announces lockdown, confining people largely to their homes. Aside from key workers, the public are allowed to leave their house only once a day for exercise/essential shopping. All shops selling non-essential goods are told to close, gatherings of more than two people in public are banned and all events (including weddings, excluding funerals) are cancelled.
Tues 24 March – day 2
Confusion reigned over the guidance issued overnight for the children of separated parents and whether or not they could pass between two homes during lockdown.
Weds 25March – day 3
Thurs 26 March – day 4
Support package for self-employed revealed, after multi billion pound package of measures to prevent mass layoffs/improve the welfare system is announced a few days prior. Clap for our Carers begins.
Fri 27March – day 5
PM and Health Secretary test positive for Covid.
Sat 28 March – day 6
Mon 30 March – day 8
Tues 31 March – day 9
Thurs 2 April – day 11
Fri 3 April – day 12
Sat 4 April – day 13
Sun 5 April – day 14
Queen delivers message of hope to the nation, as Downing Street announces the PM has been admitted to hospital.
Mon 6April – day 15
Tues 7 April -day 16
Weds 8April – day 17
Today is widely reported to be the day when the peak of daily Covid-19 deaths occurred in England.
Thurs9 April – day 18
Fri 10 April – Good Friday – day 19
Sat 11 April – Easter Saturday – day 20
Sun 12 April – Easter Sunday – day 21
PM released from hospital. Covid death toll in hospitals passes 10,000.
Tues 14 April – day 23
Weds 15 April – day 24
National Police Chiefs’ Council says more than 3,200 fines for alleged breaches of lockdown laws were issued by police in England between 27 March and 13 April.
Thurs 16 April – day 25
Dominic Raab announces extension of lockdown measures for at least three weeks.
Sat 18 April – day 27
Sun 19 April – day 28
Mon 20 April – day 29
Government announces that over 140,000 applied to the job retention scheme on the morning of its launch.
Tues 21 April – day 30
Weds 22 April – day 31
Prime Minister’s Questions conducted by video link for the first time ever.
Thurs 23 April – day 32
Millions become eligible for a Covid test under an expansion of the testing programme for essential workers and their households.
Fri 24 April – day 33
Sat 25 April – day 34
Sun 26 April – day 35
Mon 27 April – day 36
Boris Johnson back in Downing Street. Government faces calls for full action plan to tackle rising tide of domestic abuse; and to introduce new measures to ensure employers assess the risks of people returning to work before easing restrictions.
Tues 28 April – day 37
Thurs 30 April – day 39
Boris Johnson announces that the country is past the peak of the disease and the government begins to look ahead at easing certain restrictions. Captain Tom Moore celebrates his 100th birthday.
Fri 1 May – day 40
Sat 2 May – day 41
Mon 4 May – day 43
Tues 5 May – day 44
The UK’s declared death toll rises to more than 32,000 to pass Italy’s total and become the highest in Europe. Trials of new Covid contact-tracing app begin on the Isle of Wight.
Weds 6 May – day 45
Professor Neil Ferguson quits.
Thurs 7 May – day 46
Fri 8 May – day 47
75th anniversary of VE Day and widespread media reports of mass gatherings at parties.
Sat 9 May – day 48
Sun 10 May – day 49
Boris Johnson sets out headline points of a roadmap for easing lockdown, though the detailed document is not published until the following day. He says phased reopening of schools and non-essential shops in England could potentially begin from 1 June if transmission can be reduced and people who can’t work from home should be actively encouraged to return to their jobs. Unlimited exercise granted in England. Leaders of Scotland, Wales and Northern Ireland refuse to adopt the new “stay alert” slogan and said insufficient details had been provided.
Mon 11 May – day 50
Tues 12 May – day 51
Announced that the furlough scheme, supporting 7.5 millions jobs, will be extended to the end of October with employers expected to pick up a share of the bill from August.
Weds 13 May – day 52
Boris Johnson urges those who can’t work from home to go back to work; people are allowed out of their homes for unlimited exercise and garden centres can reopen. People can meet one other person outdoors as long as they stay at least 2 metres away.
Thurs 14 May – day 53
Fri 15 May – day 54
Sat 16 May – day 55
Sun 17 May – day 56
Government announced to be investing a further £84 million in the hunt for a vaccine.
Tues 19 May – day 58
Weds 20 May – day 59
A testing and tracing system, seen as the key to easing the lockdown, will be up and running by 1 June but the rollout of the contact tracing app will come later.
Thurs 21 May – day 60
Fri 22 May – day 61
Quarantine measures announced requiring travellers arriving in the UK from 8 June to share contact details with the authorities and then self-isolate. Reports emerge that Dominic Cummings broke lockdown.
Sat 23 May – day 62
Sun 24 May – day 63
Boris Johnson backs Dominic Cummings and announces a phased reopening of schools.
Mon 25 May – day 64
Dominic Cummings gives THAT press conference about his trip to Durham and drive to test his eyesight.
Tues 26 May – day 65
Thurs 28 May – day 67
Fri 29 May – day 68
Sat 30 May – day 69
Sun 31 May – day 70
Mon 1 June – day 71
The government reopens all schools for Reception, Year 1 and Year 6 pupils. Groups of 6 people allowed to meet in parks and back gardens. Socially distanced barbecues allowed.
Tues 2 June – day 72
Weds 3 June – day 73
Fri 5 June – day 75
Sat 6 June – day 76
Sun 7 June – day 77
Mon 8 June – day 78
Ministers introduce quarantine measures for all arrivals in the UK. Dentists allowed too reopen for the first time for non-emergency care.
Tues 9 June – day 79
Gavin Williamson tells MPs that primary schools in England won’t be able to welcome all pupils back for a month before the summer holidays as the government had previously hoped.
Thurs 11 June – day 81
Fri 12 June – day 82
Sat 13 June – day 83
The first social bubble, the “support bubble” is announced, with single person households allowed to meet and stay overnight with another household.
Sun 14 June – day 84
Mon 15 June – day 85
All non-essential shops are given the green light to re-open as long as they meet new social distancing guidelines. People can also return to zoos, safari parks and places of worship. Face masks become mandatory on public transport in England. All pupils allowed to return to school if possible to do so with strict social distancing rules in place including 15 pupil caps on classes.
Tues 16 June – day 86
Weds 17 June – day 87
Premier League football restarts after 100 day absence.
Thurs 18 June – day 88
Government announces it is ditching ambitions to develop its own software for tracing app, and will instead work with Apple and Google. App is now hoped to be ready by the autumn/winter flu season.
Sat 20 June – day 90
Sun 21 June – day 91
Mon 22 June – day 92
Tues 23 June – day 93
Government announces relaxation of 2 metre social distancing rule to “one metre plus” from 4 July, a shot in the arm for the hospitality industry. From 4 July families will be able to reunite, pubs will reopen and people can go on holiday in England. Cinemas, museums, art galleries, bingo halls, community centres, hair salons, work canteens, outdoor playgrounds and outdoor gyms will be able to reopen.
Weds 24 June – day 94
Scottish government announces it intends to allow outdoor hospitality like beer gardens to reopen on 6 July, non-essential shops within indoor shopping centres from 13 July and households will be able to meet indoors with people from up to two other households from 15 July.
Thurs 25 June – day 95
Northern Ireland announces social distancing requirements will be reduced from two metres to one as restaurants and hotels prepare to reopen on 3 July. Other reopenings include nail parlours and beauty salons on 6 July, playgrounds on 10 July and the resumption of competitive sport on 17 July. The Welsh government has no timetable for reopening pubs and restaurants.
Fri 26 June – day 96
After thousands flock to beaches during a heatwave the PM warns against taking liberties with social distancing rules. Quarantine measures for those entering the UK are set to be scrapped for some counties and replaced with a traffic light system based on a country’s Covid risk.
Earlier this month, I answered an FT reader’s question about what happens if separated parents disagree about their child’s schooling.
It feels as though issues arising between parents on separation are becoming ever more numerous and complex, and that there is a weight of expectation on schools to be both a referee for the parents but (more important) a watching eye over children affected by parental conflict. So how widespread an issue is this for schools? What are the issues which may arise for them where parents are separated or divorced? What are/should be the extent of their responsibilities and how good are they at meeting them? And how should parents engage with the school/each other to avoid problems arising in the first place/quickly resolve them if they do?
The extent of the issue – some stats around family types and separation
Schools will interact with a number of different family types – married/civil partnered parents; cohabiting parents; separated/divorced parents; and single parent families. The first two family types can run into difficulties during/after separation and may experience some or all of the issues set out later in this blog; for the single parent families, there will not be another parent to be in dispute with, but (as with the other family types) there may be difficulties with the child which may necessitate the involvement of third parties, such as social services.
It shows that in 2019, married and civil partner families accounted for the largest share of families with dependent children (61.4%), followed by lone parent families (22.3%) and cohabiting couples (16.3%). However, some noteworthy trends in the past decade –
The number of cohabiting couples with dependent children has increased by more than one-quarter;
The number of married/civil partner couples with dependent children has increased by 4.8%;
The number of lone parents with dependent children has decreased by 9.8%.
But what of separation, which is where the really thorny issues often arise?
Assuming (crudely) that the average family has 1.89 children, that means that around 173,000 children were affected by divorce in 2018. Note that the year prior, 2017, there were 101,669 divorces of opposite-sex couples and 338 divorces of same-sex couples, meaning that closer to 193,000 children were affected by divorce that year.
However, that doesn’t tell the whole story, as it doesn’t deal with the ending of unmarried parent relationships. We know that cohabiting couples are the fastest growing relationship type (around 3.4 million couples, having increased from 15.3% of all families to 17.9% in a decade and expected to double by 2032) and they are widely acknowledged to be a less stable form of union than marriage/civil partnerships. However stats for the ending of cohabiting relationships are hard to come by as there is no interaction with the state when a cohabiting relationship ends, save to the extent any financial orders are made for children or child arrangements orders.
As of 2016 (the most recently available statistics), only just over half of births were within married/civil partnered relationships, compared to just under 80% 30 years ago. Given what we know about cohabiting relationships being less stable than marriage, it can be surmised that at least the same number of children who are affected by divorce each year will be affected by the separation of unmarried parents, and probably many more. Indeed, it may be that taking both family types, as many as 500,000 children a year are affected by parental separation. Whatever the true figure, what can be said with confidence is that issues arising from parental separation are prevalent and something with which schools up and down the country must grapple every day.
The school/teacher population
So with around half a million children affected by parental separation each year (and by that I mean newly separated parents; of course there are hundreds of thousands of children in schools whose parents are already separated), how well-placed are schools to respond in terms of their numbers?
there were 8.82 million pupils in all schools in England in 2019, an increase of 1% year on year (and a 9% increase in a decade); within that around 580,000 were in independent schools, where numbers have been falling since 2017 and now have c2,300 fewer pupils since then
the number of pupils in state funded secondary schools rose for the fifth year in a row and had a much greater increase in population than primary schools in 2019
15.4% of pupils were eligible for and claiming free school meals, the highest proportion since 2014
the average infant class size decreased slightly year on year to 27.1 (a figure which has been fairly constant for the past decade)
Pausing there – even if we assume (conservatively) that 400,000, rather than half a million, children are affected by parental separation each year, that is over 4.5% of the school population; and of course that is only in one year and takes no account of those whose parents have already separated. In other words, an additional 400,000 children every year.
There was only a 2.7% increase in the full-time teaching workforce over an 8 year period, contrasted with an 8% increase in the school population over the same period. The problem is especially acute in secondary schools, where there has been an almost 7% drop in full-time teachers in the past 8 years whilst the number of pupils has stayed fairly constant.
what parental responsibility is, who has it and the key effects of a second parent acquiring it
different types of court order which settle different areas of dispute in relation to a child’s upbringing or the exercise of parental responsibility
The meat of the document is contained under headings which start, “General principles for schools and local authorities”. Those principles include :
Everyone who is a parent can participate in their child’s education; pupils are to be educated in accordance with the wishes of their parents [so far, so good]
all parents can receive information about the child (though for day to day purposes the school’s main contact is likely to be a parent with whom the child lives on school days) [pausing there – why? This may be administratively simpler, but as many dads still have an alternate weekend-type arrangement, they shouldn’t be cut out of the picture just because Monday to Friday happens to be spent with mum]
individuals who have parental responsibility for/care of a child have the same rights as biological parents, e.g. to receive information like reports, be asked to give consent e.g. to trips, be informed about meetings involving the child
school and local authority staff must treat all parents equally, unless a court order limits a parent’s ability to make educational decisions, participate in school life or receive information about their children
(crucially) – “Where a parent’s action…conflicts with the school’s ability to act in the child’s best interests, the school should try to resolve the problem with that parent but avoid becoming involved in conflict. However, there may be occasions when a school needs to decline requests for action from one or more parents. In cases where schools cannot resolve the conflict between separated parents, they should advise the aggrieved parent to pursue the matter through the Family Court”. [Note here – this places quite a high burden on the school. It would make sense for local practitioners to work with schools so that schools are aware of different dispute resolution services available locally, thereby bypassing both detailed school intervention and court].
Some specific areas covered by the note :
Information sharing : having PR doesn’t allow a parent to obstruct a school from carrying out their duties under legislation (e.g. if a parent asked a school not to share educational information about the child with the other parent). If a school doesn’t know where the non-resident parent is, it should make the resident parent aware that the other parent is entitled to be involved in their child’s education and request that the information be passed on. If the resident parent refuses to share information, and refuses to provide contact details so the school can deal direct with the non-resident parent, the school can do no more. Schools aren’t required to seek the consent of the resident parent before recording the contact details of the non-resident parent or sending them information; and there’s no requirement to request a solicitor’s letter or court order. [note – I always tell my non-resident parents to let the school know, immediately on separation, how they may contact them and to be clear that they want to see all the same information from the school as the resident parent. Occasionally I have had a school contact me to check the position and I have sent a letter/provided evidence of PR if so]
Obtaining consent : generally schools only seek the consent of the resident parent to outings and activities, unless the decision is likely to have a long-term and significant impact on the child or the non-resident parent has requested to be asked for consent. Where both parents’ consent is requested, schools may wish to assume that parental consent hasn’t been given unless all parents agree. Schools shouldn’t become involved in any disagreement but might want to signpost to advice/court.
Safeguarding : All schools are required to have regard to the Keeping Children Safe in Education statutory guidance, referenced further below.
The sort of issues children (and therefore schools) face
Disagreement over choice of school
I find that I’m having an increasing number of parents disagreeing over choice of school, both when I work with couples as a mediator and when I advise one of them as their solicitor. I have had two recent instances where money was no object for education and the disagreement was as to which of various top private schools the child should attend. In another two cases, the disagreement has been as to boarding versus being a day pupil. I have a mediation where the couple don’t agree as to the type of special educational needs support their child should receive. I also have an ongoing case – not my first of this type – where one parent wants the child to have a state education, the other a private education. Sometimes this particular issue arises for moral/ethical reasons; or it may be because the parent who objects would wish any future children they go on to have with a new partner to go to the same school as their older sibling but cannot afford that.
I also had one especially worrying case a number of years back where my client, the father (in whose favour a shared residence order, as then was, was in force and who also had parental responsibility) discovered that the mother, from whom he was long separated, had first of all harassed the child’s private school to the extent it became impossible for him to remain there (after she had never been keen that he attend in the first place); and then, having had her way and got him into an inner London comprehensive school, disenrolled him without the school thinking to tell my client. Various letters were written to the local authority reminding them of parental responsibility and the legal position.
But to summarise the whole smorgasbord of disagreements which may arise in relation to schooling –
Ø State versus private
Ø Co-ed versus single sex
Ø Boarding (full-time or weekly?) versus day pupil
Ø Disagreement about different private schools
Ø Formal education versus home instruction
Ø Different curricula, e.g. GCSEs versus International Baccalaureate
In the event of disagreement about a child’s education, anyone with parental responsibility (usually a parent) can apply for a ‘specific issue order’ (used to look at a specific question about how a child is being raised, resulting in a positive order from the court) or a ‘prohibited steps order’, blocking one parent from taking a particular course.
Although there are not (to my knowledge) stats about how many applications are being made to court about school disputes, the latest family court quarterly stats deal with the number of private law children cases more broadly and chime with my own experience – there was a 5% increase in the number of private law cases started in Q3 2019 compared with a year prior and a 10% increase in disposals. There were almost 22,000 children involved in those applications. These figures were the highest since mid-2013, when the legal aid cuts took effect.
So what may be the reasons for a growing number of schooling disputes? My own theories –
The removal of legal aid from April 2013 onwards has undoubtedly been one of the main drivers behind the increase in the number of overall children cases going to court. Fewer people are signposted to advice and so are pursuing their own claims and not resolving them out of court
There are ever greater choices – types of school, curricula, religious instruction, etc – leading to more scope for disagreements
There are more couples with spouses from different backgrounds who may have different views as to the best type of education for their child at the end of their relationship
Greater mobility may mean that more parents are looking to move on separation and that would trigger the need to look again at schooling, at a point when a child may otherwise be settled in his/her education.
In the absence of the parents being able to reach agreement, the court or an arbitrator will have to do so by reference to a welfare check-list, including the ascertainable wishes and feelings of the child concerned; their physical, emotional and educational needs; the likely effect on the child of any change in his circumstances; the age, sex, background and any characteristics of the child which the court considers relevant; any harm which the child has suffered or is at risk of suffering; and how capable each of the child’s parents are, and any other person in relation to whom the court considers the question to be relevant is, of meeting the child’s needs.
Therefore the Court will look at factors such as the location of the schools proposed, how the child would travel to the school, the wishes of the child, the level and type of learning the child would receive, whether the child has any specific needs and how they would be dealt with etc.
In Re G (Education: Religious Upbringing)  1 FLR 677 Lord Justice Munby created the concept of the “judicial reasonable” parent and laid down the three objectives of the Court when making a decision about the upbringing of a child:
Recognise that equality of opportunity is a fundamental value of society. By this he meant equality between different communities, social groups, genders etc.
Foster, encourage and facilitate aspiration.
Bring the child to adulthood in such a way that the child is best prepared to decide the type of person they want to be and the type of life they wish to lead.
The views of the child’s current school/ teachers are likely to be taken into account when the court/arbitrator considers which school is appropriate going forward, and this is where a school is likely to find itself dragged into parental disagreement. Ordinarily I suggest to my client (or to couples I am mediating) that they collate recent school reports and try to talk to the child’s class teacher, housemaster/mistress or headmaster/mistress (as appropriate) about their view as to what makes this particular child ‘tick’ and whether he or she is more likely better suited to an especially academic school, one with a sporting tradition, music etc etc. They will be best placed to know the environment in which a child will thrive and to make recommendations based on that. I always encourage the parents, where possible, to meet with the school together so as not to place the teachers in an impossible position; better for the parents to be hearing the same message at the same time.
Tips for parents
As far as possible, I try to get parents to reach their own decision, assisted by the school’s recommendations but without trying to delegate responsibility for a decision to the school wholesale. The best advice is to –
Keep school options open; make multiple applications, even if you don’t agree with some of the schools your ex has suggested/have your child do entrance exams for all as applicable;
Be open-minded. Sometimes parents do change their mind as a result of further investigation and come round to the other parent’s point of view. Go and visit all schools on the list; even if you don’t change your mind, it will make you seem more reasonable (and better placed to explain your objection) if you have explored every option;
Work with the current school to find what they think would best suit your child, without delegating the decision wholesale;
Try to reach agreement through mediation – far better than asking a judge, who won’t know your child, to decide;
Don’t put the school in the middle; try to approach them jointly for guidance and in an open-minded manner;
Allow time to resolve the issue; a court process takes time and won’t easily dovetail with the timetable for decision-making. Especially where the parents are looking at private schools, the window between exams/interviews/offers, and having to make a decision, can be as narrow as two weeks. In those circumstances, arbitration can be a really useful process as one can arrange the hearing to take place in the short window once offers are known, and a decision can be made quickly and in time for the school to be notified.
Disagreement at the school gate over whose “turn” it is to collect the children
I have had this happen in a number of my cases. I can think of one particular case where a couple were coming into mediation with me for the first time and upon arrival at my office, one of them handed over a letter their children’s primary school had sent to them, berating them for turning up at the school gates one day the week prior and having a blazing row over whose turn it was to collect the kids, leaving their two young children in floods of tears. In that case, the steely headmistress had hauled both parents into her office, purported to impose arrangements for the next few days (which, to their credit, they stuck to) and then suggested that they go to mediation to sort things out, which they duly did.
In another of my ongoing cases, where we are concerned about parental alienation, it is not uncommon for the mother to turn up early at the school gate to collect the children, so as to thwart dad’s attempt to collect them minutes later. We have learned that sadly, the existence of an Order (which, in that case, we have) is not enough and it is necessary to notify the school in advance which are the specific Fridays upon which dad is to collect the children. Again, of course, it would be practically difficult for a school to refuse the mum if she did come to collect the children when she shouldn’t, particularly as they are quite young and have already been exposed to conflict.
I have also had cases involving older children where the child has told the school, upon one parent coming to collect them, that they want to go home with the other parent. My experience of that is that, completely understandably, schools in that situation stick to the letter of any Order and don’t try to go behind it. However in certain circumstances the school can and do seek to involve social services, where they think e.g. that the child is at risk of emotional harm and no steps are being taken through the courts to change the status quo despite the child’s obvious unhappiness.
Schools in these “tug of war” type situations are in an invidious position. They are rightly careful to ask each day who is due to collect a child (as I learned to my peril the first time I went to collect my nephew from reception class and he swore blind to his teacher that he had never laid eyes on me before, causing her to question me at length thinking that I was trying to abduct him; I have just about forgiven him 9 months later). But what can they do when there is a dispute?
The most obvious answer is to do as the headmistress did with my mediating couple and intervene, for the sake of the children, making them see that their behaviour is not acceptable. I never knew how she managed to broker interim arrangements between the parents – I needed her as a co-mediator when I started my work with what turned out to be a pretty intractable parenting dispute – and then manage to write a lengthy letter summarising their behaviour, why it was unacceptable and what they had agreed pending mediation.
The Understanding and dealing with issues relating to parental responsibility guidance makes clear that schools should ask parents to ensure that they provide schools with a copy of the most recent child arrangements order in place, to support the school’s duties in respect of child safeguarding (for which parents may need the court’s consent). Of course, it can take many weeks and months to get to that point and it is precisely when things are at their most raw that there is no Order yet in place. And indeed, in around 90% of cases involving separating parents, they reach their own informal parenting agreement.
Ultimately, where the school cannot resolve the conflict, they must encourage parents to go through the Family Courts. And see below for a school’s responsibilities where the extent of the dispute is such that the conflict is beginning to affect the child’s emotional wellbeing, or other concerns.
When safeguarding concerns about children arise
5 years ago, Resolution commissioned research about the impact on children of parental separation and divorce. Among the quite shocking results, the adverse impact on children’s exams of acrimonious divorce was brought to the fore. Many children turned to alcohol and drugs. 82% of those surveyed, aged 14-22, who had experienced parental separation said it is far better for kids if unhappy parents separate rather than stay together for the sake of the children. https://www.theguardian.com/lifeandstyle/2015/nov/22/children-divorce-resolution-survey-rather-parents-separate
I have had plentiful cases where it is either the school who has first picked up and reported concerns about a child; or else they have played a pivotal role in social work which has followed parental separation. In a present case, the local authority’s involvement was triggered by the police, who kept getting called to acrimonious handovers (invariably the mum refusing to hand over the kids, despite an Order being in place); what the school have been able to contribute to the work so far has been invaluable.
KCSIE is a comprehensive guide for teachers of what to look out for and what to do if safeguarding concerns arise. It emphasises that all who come into contact with children and their families has a role to play in safeguarding children. Schools are especially important as they are in a position to identify concerns early and provide help for children. A child in immediate danger or at risk of harm should be referred immediately to children’s social care or the police and all schools are required to have a designated safeguarding lead. Details of the specific role of school staff are set out at part one of KCSIE; and the sort of things they should look out for are at paragraphs 18 to 31.
It shouldn’t be forgotten, of course, that much of what is referenced in KCSIE as being things to watch out for – being in a family circumstance presenting challenges for the child, misusing drugs/alcohol, emotional abuse, neglect – may come about as a result of parental separation or associated court proceedings. Therefore teachers are right to be especially alert where they are aware of this in the background.
What should parents do?
Whilst it would be all too easy easy for parents, especially those who are separated, to delegate all responsibility for these issues to the school and let them be the arbiter of disputes, that is neither realistic nor fair. Schools have a duty to all of their pupils and there are obvious resource limitations.
First and foremost, separated parents should be doing all that they can to shield their children from conflict and reach their own agreements so that the school does not need to intervene. Organisations like Resolution have plentiful guidance for parents about how to ensure that their children are put front and centre in any divorce and protected from the fall out
One chapter in the book deals with what schools need to know about parental separation and suggests :
Parents’ first action on separation should be to let the school know that separation has happened, having discussed with the children the fact that that conversation is to take place, and what is to be said/to whom, as a child will often seek out a trusted adult at school to share their feelings with. Schools should be given contact details for both parents, the order in which they should be contacted and contact plans.
Schools should provide copies of all correspondence to both parents and parents need to be proactive about letting the school know if this isn’t happening.
Parents should present a united front and show that they both value and care about the child’s education, putting differences aside for the child’s benefit.
A shared response to any problems at school is helpful; working with the school to get to the root of any problems and parents talking honestly to each other makes a huge difference to a child.
Schools have thoughts about contact arrangements, uppermost – don’t use them as a weapon; and don’t withdraw time because this can leave a child distressed. Certainty in arrangements is key.
I have seen both good and less good practice from schools when it comes to dealing with children of separated parents. It is right that they need to be on top of their statutory safeguarding duties; and to know at least the basics of parental responsibility and who has it. But expecting them to police parental disputes is unrealistic.
When I tweeted about my FT piece earlier this month, it was clear that many have dissatisfaction with the way in which schools engage with separated parents –
Schools have an invaluable role to play when families break up. It would be good to start a dialogue about how we may harness best practice, eradicate less good practice, and all work together to provide joined-up thinking for the children of broken homes, with everyone with whom they engage rowing together for their benefit. A good starter for ten may be engagement at grass roots level between local lawyers, therapists, social workers, teachers and GPs, so that everyone is educated in roles and responsibilities, knows the legal framework and has a little black book of who to refer to if parents need therapeutic, mediated or other assistance. Ultimately, this has got to be to the benefit of children everywhere.
The statutory provisions around how finances on divorce are to be approached – as set out in s25(2) of the Matrimonial Causes Act 1973 – are as old as yours truly. That is, VERY old. But what we have is an excellent (by and large) family judiciary which uses the discretion afforded by that statute and flexes decisions to meet changing modern mores and the facts of the individual case, to reach a fair outcome. To a point, that is fine.
However, society has moved on since 1973 and it is not enough to rely on judges to reflect societal changes. Few people who practice in this area (and even fewer who have been through divorce themselves) would say that the current law is perfect and not in need of change. However, when news filtered through last week that a Divorce (Financial Provision) Bill is being introduced for first reading in the House of Lords on 20 January, let’s say I was doing whatever is the opposite of a victory dance. I (along with many practitioners and specialist stakeholders) have been a vocal critic of the Baroness Deech bill which has been around now for some time; and although I have yet to see the detail of this one (and understand it is being introduced by Baroness Shackleton, not Deech), if it is anything like its predecessor (and one is to assume it is a carbon copy, given that Baroness Shackleton has expressed support for the Baroness Deech bill in the past) it is bad news for separating couples (or, more specifically, the financially weaker party).
The problem with the current law about finances on divorce
The Resolution Manifesto for Family Law – launched when I was Chair and somehow 5 years old next month – says of financial remedies reform the following :
The removal of legal aid has led to a rise in unrepresented litigants, with over 50,000 people representing themselves in family disputes in 2013.
Divorce law relating to finances is complex and difficult to understand. Outcomes can be difficult to predict, even for legal professions [20 years in, I will admit to this]. Section 25 of the Matrimonial Causes Act 1973…has fundamentally remained unchanged for the last 40 [now add another 5] years. The concern is that people separate with little or no understanding of the financial consequences of their break up, making it more difficult for them to reach agreement and placing a greater burden on the court system.
[Another aside – this is really the crux of it. In an era of limited (and let’s be frank, really no) access to legal aid, those navigating divorce need clarity about likely financial responsibilities/entitlements. Courts meting out justice need fewer cases crossing their threshold. Mediation numbers are down, when many of these cases could no doubt be sorted out away from court. Goodness knows how many more people than pre-LASPO are just not pursuing financial claims on divorce because they don’t know how and becoming dependent upon the state for hand-outs. We know that, statistically, for those who do instruct solicitors the cost of divorce is going up. And the family courts are seeing private law case numbers which are creeping back up to pre-LASPO levels –
The Manifesto continues –
With the average median household income at £32,600, most peopledo not have huge resources to divide on separation. The complexity of current law affects ordinary people, living in ordinary circumstances. Reform is needed to make sure they are fairly provided for after they separate.
None of that can be at all controversial. Many of us practicing as family lawyers can lose sight of the fact that in the average case, the assets are modest (and sometimes may only comprise debt) and how to provide for two households can be a conundrum. The average reported case, involving as it invariably does multi-millions and disputes about why there should be departure from equality of capital division, or whether the non-working spouse should be compensated in budget/spousal maintenance terms for giving up a potentially lucrative career of his/her own (A – probably not any more), doesn’t speak to the proverbial man (and woman) in the street.
So what, in outline, is the answer?
Resolution calls for clear guidance for people entering the court system, so that they are more aware of the potential outcomes and consequences, and for a wide-ranging reform of the financial provision system to achieve more clarity.
[Note – I honestly don’t remember why we said “for people entering the court system’. Elsewhere in the manifesto we endorsed measures to help separating couples reach agreement out of court. Read in tandem with that manifesto ask, the point was really that, whatever the forum for sorting out their divorce, we wanted divorcing couples to have greater clarity about the likely approach to their finances on divorce]
The reforms to Section 25…that Resolution wants to see emphasise independence and greater certainty on the level and timescale for payment of maintenance, with children’s interests at their heart.
[I shall return to this theme as there is a distinction between this position, which is really about more principled discretion than exists at present, and the Baroness Deech/Shackleton bill, which moves more towards straitjacketing and (seemingly at least) disregards fairness/children’s interests].
Enforceable agreements (commonly known as “pre-nups”) should be permitted with suitable safeguards. This would provide certainty to people entering the courts that a previously made agreement will generally be binding, unless it does not satisfy clearly identified criteria. The independent Law Commission has also called for change in this area
[Likewise, where the previous bill was apart from this was on the question of fairness, about which it was silent]
Clear guidelines are needed on the division of capital resources and pensions. Resolution proposes a distinction between matrimonial property and non-matrimonial property in cases where resources exceed the needs of the separating couple.
[The rub here is the final part of the second sentence – in cases where resources exceed needs. The bill, in its last iteration, seemed unconcerned about outcomes/fairness; the principle was all about the ring-fencing].
What does the Law Commission say?
In 2009 (how is it now 11 years ago?), the Law Commission started a project to look at the status and enforceability of marital property agreements. A consultation was opened in January 2011 but the project was (logically) extended in 2012 to cover two further aspects of finances on divorce – financial needs and non-matrimonial property. As such, a supplementary consultation was commenced in September 2012. It was not a full-scale reform project directed at the entirety of the law of financial orders, but aimed to bring clarity to areas of the law that cause particular difficulties.
Clarify, through the provision of guidance by the Family Justice Council, the law relating to “financial needs” to ensure that the law is applied consistently by the courts.
Give guidance to give litigants in person access to a clear statement of their responsibilities and the objective of a transition to independence that a financial settlement should achieve.
Investigate the possibility of whether an aid to calculation of “financial needs” could be devised; specifically it was envisaged that formulae, if developed, would take the form of non-statutory guidance and give a range of outcomes within which a separating couple might negotiate.
Introduce “qualifying nuptial agreements”, enforceable contracts enabling couples to make binding arrangements for the financial consequences of divorce, subject to certain procedural safeguards being met.
One of the areas which particularly piqued the interest of readers of the report was the suggestion of non-statutory guidance. The Law Commission pointed to the experience of other jurisdictions who have produced such guidance and suggested that work be done to gauge whether an aid to calculation could be devised and found useful. The relevant paragraphs of the (detailed – sorry) report are 3.121 to 3.159, which concluded that Government should support the formulation of a working group, to be convened once suitable empirical data become available, to work on the possible development of a formula to generate ranges of outcomes for spousal support. It was envisaged that the project, which would be populated by those from a range of relevant backgrounds, could last for some five years. That in itself emphasises what a complex area this is and the need for an evidential basis for any reform.
The Ministry of Justice also undertook some scoping work on the feasibility of developing non-statutory and numerical guidance on the calculation of financial needs. However, no substantive steps were taken in the 2010-2015 parliament as government considered that there was unlikely to be time for matters to progress (and, particularly, for the nuptial agreements bill appended to the report) before parliament was dissolved in March 2015. There have been no subsequent developments (need I say, the Tories having secured a 12 seat majority in the 2015 election, but then everything having been eclipsed by the Brexit vote in 2016 and the ruling party’s loss of its small majority in the 2017 elections).
The Divorce (Financial Provision) Bill 2017-19
Practitioners have long had a (wary) eye on the Divorce (Financial Provision) Bill 2017-19, which also featured in the previous parliament. It was beginning to pick up pace through the House of Lords in late 2018, completing its House of Lords stage and being presented to the House of Commons on 19 December 2018 (where it was being sponsored by Tim Loughton MP, who also sponsored the bill which led to civil partnerships for all from 31 December). However it never reached second reading stage and fell with the general election.
Limit the assets up for grabs on divorce to “matrimonial property” (as fairly narrowly defined in the Bill), without regard to fairness of outcome, and have a strict accounting exercise as to how that gets divided;
Give nuptial agreements a statutory footing along similar lines as recommended by the Law Commission, save for (a) only needing pre-nups to be signed at least 21 days before a marriage and (b) (crucially) making no reference to fairness, as a factor which dictates whether or not a nuptial agreement should be upheld (why the heck not?)
Have a spousal maintenance regime which focuses on economic advantage gained/economic disadvantage suffered and which caps spousal support at 5 years (having previously been 3 years in the Bill) save in only extreme circumstances.
The Bill as it stood does not have much (if any) support among practitioners in England and Wales and is not (or was not) understood to have government support. To avoid reinventing the wheel, I have included below the text of a detailed letter I sent to Peers in November 2018, which explains the scheme of the Bill and my/Resolution’s opposition to it. (The backdrop to the letter was that I had spoken at a House of Lords round table some months prior about the Bill, making clear that it is a bad Bill, and one or two Peers asked that we write to set out a line by line critique of the Bill and what we were content with/what we felt needed amending; the reality is that the whole premise of the Bill is flawed and so any line by line analysis is impossible).
An evidential basis for reform?
It is apparent, from reading the transcript of the second reading debate of the Bill in the House of Lords on 11 May 2018, that in certain quarters there is significant strength of feeling about financial remedy reform. The problem is (and I say this with the greatest of respect), the focus seems to be all wrong.
It is based on sensational stories on the Archers and in the tabloid media. Is this really the most sound footing for law reform?
It references cases which hit the media in which the legal costs have become disproportionate to the assets actually being fought over. Clearly this is regrettable (to say the least) and gives our profession a bad name (ditto). But are those cases the norm? (Clue – no). And isn’t that about looking at the costs rules which operate in these cases (as indeed is happening at this very moment)? And surely if the law changed as this Bill envisaged, the focus of the debate would just become something different – e.g. what falls within and without the new definition of matrimonial property, or does a particular case meet the (limited) circumstances in which more than 5 years’ spousal support would be ordered? The costs of those investigations may well be just as high as the costs at present.
It is premised on the assumption that most people who make claims to the family courts are gold-digging hussies who should be given short shrift. Is that really our day-to-day experience? For every forum-shopping gold digger, I will give you 1,000 spouses who have worked hard in the home, been out of the workplace for 15 or 20 years, have contributed little to the marriage in financial terms (but masses in other ways) and come to the family courts in a position of real, sometimes dire, need. Are they to be prejudiced because the perception is that WAGs and gold-diggers is the typical demographic? And only recently I have been involved in a case where the wife (30 odd years younger than the husband, from what may be regarded as a jurisdiction which produces gold-diggers) has been branded a gold-digger yet the marriage has been of goodly length and produced children.
It pays no regard, in fact, to the detailed work of the Law Commission (which spanned several years and received responses from all the key stakeholders in this area) and the detailed further work which it says ought to be undertaken before any reform happens.
I could go on.
Others with far greater intellect (not difficult) than me have highlighted their concerns around this Bill.
But the final word on the subject has to go to Baroness Hale, recently stepped down from the Supreme Court presidency and well known for her steely intellect, warmth and impressive collection of brooches. She has been a vocal critic of the Divorce (Financial Provision) Bill, attracting comment from the legal press about how unusual it is (or now, was) for a President of the Supreme Court to express criticism of legislation before parliament (though we know now that our beloved Brenda doesn’t shy away from political controversy – legality of prorogation, anyone?). https://www.lawgazette.co.uk/news/hale-risks-political-storm-by-questioning-legislation-before-parliament/5070911.article