Last weekend, I was perusing Mother’s Day cards (reminder folks – Sunday! This is not a drill…) when I came across this one
I was about to tweet a picture of it, with a pithy message about how pleasing it is that card companies are now recognising that families come in all shapes and sizes and there is no ‘one size fits all’ when it comes to parenthood. However something – the family lawyer in me – caused me to pause and think about the nuance; the parental choices/wider circumstances which may lead to a parent being a single parent, and what that may mean for a child.
Single parents may be mums OR dads and what I say is intended to be gender neutral; they may be same sex or opposite sex parents; they may have been married or not. They may not have chosen to be a single parent (the other parent may have decided that, or circumstance may have dictated it, or they may have made a conscious decision, at the point of conception or adoption, that they would be the only parent in the child’s life).
The other type of single parent is one where the other parent has been involved (or has had the chance to be involved) in a child’s life, but for a multitude of reasons associated with the present parent or the child (and often one drives the other) no longer is. I have seen both mums and dads as estranged parents, and both mums and dads occasionally playing a role in the estrangement. The common theme is the impact on the child concerned; and the plea is to consider how we may do things differently for children.
So, in what circumstances may a parent be a single parent? And how can lawyers, therapists, parenting organisations and the like work together to ensure that children have the parenting arrangement they deserve and need?
Single parenthood through circumstance
Some parents – mums or dads – may be single parents through circumstance (e.g. where the absent parent has chosen not to play a role in the child’s upbringing, or where it is deemed not safe to the child for them to do so, or where sadly the other parent has died during the child’s minority). In those cases, the dial cannot be moved if a parent is no longer around or is a safeguarding risk (though of course it may be possible to mitigate that risk); and can be difficult to move the dial if the other parent doesn’t want a parenting relationship (quite a few parents have found it surprising when I have said that the Family Court cannot force an absent parent to spend time with a child if they do not wish to do so). It may also be that the parent has chosen to be a single parent, through adoption or surrogacy.
The role of the single parent in these situations is to give the child oodles of love, ensure that they have a clear sense of their identity (with a relationship with the wider family of the absent parent where relevant/appropriate) and, where possible, encourage some form of relationship with the absent parent if appropriate.
2. Single parenthood due to the child highlighting problems/choosing that
In other cases, a parent may be (or become) a single parent because the child may have chosen not to have (or have chosen to stop having) a relationship with the absent parent, for a multitude of reasons. That may be rooted in the behaviours of the absent parent during the marriage/relationship; or (increasingly in my experience) it may have to do with a flashpoint months or even years after the end of the adult relationship. Sometimes that is about a difficult co-parenting relationship post-separation, perhaps with very different parenting styles, leading to an eventual implosion when the child decides that it is too difficult to keep trying to please both parents (especially where one, or perhaps even both, is giving negative signals about the other parent and the child’s time with them) and stops wanting to see one parent. Sometimes the estranged parent may have a blip – perhaps a form of PTSD and a belated response to the difficult breakdown of the relationship with the other parent, or for other reasons which are nothing to do with the breakdown of the relationship – which the child confides in the other parent (or someone else) about and may mean that they aren’t able to carry on having the child in their care.
These are difficult situations to contend with, because there are multiple fractured relationships – the estranged parent and the child; the two parents; and pressure on the relationship of the child and the non-estranged parent, by the latter having to deal with the invariable suggestion by the estranged parent that they have manipulated the child into saying they don’t want to see the absent parent, and the child sometimes questioning the protective steps the parent with care takes. For the estranged parent, often the best advice is to accept their own shortcomings, agree to whatever treatment (individually, with the co-parent and/or with the child) is deemed necessary and resume the child/parent relationship at the child’s pace. For the non-estranged parent, it is a balancing act of (a) promoting the child/parent relationship whilst (b) protecting the child’s interests and not letting contact move forward unless it is safe, whilst often fighting a rear-guard action against allegations of manipulation (of the child)/abuse (of the other parent). The best advice in this scenario is for both parents to accept that they are not perfect, listen to their child and move forward in a therapeutic setting. The co-parents need to work together with therapeutic support to show the child that they can co-parent effectively and won’t let their disagreements impact the child; the child may need psychological support to work through the blip in the parenting relationship; the estranged parent and the child may need therapy to support getting their relationship back on track (which will need careful navigation e.g. where a child has made allegations which the estranged parent denies).
But how often do we see this scenario played out in the family courts, with one parent steadfastly refusing to accept that they have had difficulties and are in need of support, and with the other parent (sometimes) seeking to capitalise on a difficulty and be as punitive as possible in standing in the way of contact knowing that delay in progression of contact and the slow court process will serve their ends? The estranged parent may bring into the mix allegations of domestic abuse/coercive controlling behaviour on the part of the parent with care; that may lead to a fact finding hearing being mooted and further damage to an already damaged co-parenting relationship. In those cases one often sees the spectre of the child being joined to the litigation and a children’s Guardian appointed, sometimes with the risk of a child having to give evidence against a parent; and a social services investigation often triggered by the perceived level of parental conflict. With some level of parental insight and cooperation, and skilled therapeutic interventions, it may be possible to avoid this sort of scenario.
3. Single parenthood through the parent with care excluding the other parent
And what of the situation where the parent is a single parent as a result of them excluding the other parent from the child’s life, where there is seemingly no objectively good reason to do so? As family lawyers we hesitate to use the phrase parental alienation. But sometimes consciously, sometimes not, one parent effectively excludes the other parent from the child’s life. We have all seen the cases where this is overt – e.g. one parent makes repeated allegations to social services which they know to be false but which they hope will either eventually stick, or cause the other parent eventually to give up and walk away. In one sense these are the easy cases, as the court can and should think very seriously about the detrimental impact on the child of this behaviour and the need to transfer “residence” to the other parent. The reality is more difficult, of course, as few judges will readily conclude that that course will outweigh the detrimental impact to the child of a sudden change of homes. The best advice to the parent with care is, reflect long and hard on your behaviour and the inevitable long term impact upon the child. And to the parent against whom the allegations are made – press hard for the parenting relationship to be preserved, but sometimes know that (extremely sadly) the right thing for the child is to bide your time, walk away, stay in touch in other ways and seek to re-establish the relationship down the line. That is the hardest call a parent in that situation can make, and difficult advice to give on occasion.
Arguably the more difficult cases are those where the alienating behaviour is more covert and nuanced. Contact with the other parent may be “allowed” to happen by the parent with care, but the negative signals underpinning it may be obvious to a child – lingering handovers, a quip of “don’t worry darling it’s only 2 nights”, frequent phone calls during the contact (even where the child isn’t signalling that they want it), sending trinkets with the child to contact to remind the child of the other parent, etc etc. The effect of these behaviours is subtle, but over time it may build up to a child deciding that they don’t want to spend time with the other parent (and the parent with care doing nothing to encourage the relationship).
In those cases, again the advice to the parent who is giving those signals to the child should be to think carefully about the harm being done to the child and how the parent’s own anxieties about being separated from the child can be quelled/managed (sometimes with family therapy/therapeutic support). To the parent on the receiving end of those behaviours, giving plenty of reassurance to the other parent and communicating with them effectively (without letting your own time with the child be marred or dictated to by the other parent) is essential.
Bringing it back to the child…
In all of this, the experience of the child is key. Where it is possible – and safe – a child should always have a good quality relationship and meaningful time with both parents. Where it is not, a child should be given a proper sense of their identity and both sides of their family.
So this Mother’s Day (and indeed Father’s Day – 18 June, folks!) make sure that your child’s needs are front and centre. Give them the parenting arrangement they need and deserve. And ensure that, if at all possible, they get to celebrate each parent on their special day, whatever the state of the adult relationship.
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.
The Parents Promise
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 :
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.
2. Agree ascript 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.
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.
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
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
Ø Religious instruction or not
The legal position is that everyone with parental responsibility for a child has a right to be involved in decisions relating to a child’s education. A useful Commons Briefing on parental responsibility, what it is and how it is gained and lost, is here https://researchbriefings.files.parliament.uk/documents/SN02827/SN02827.pdf
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) [2013] 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.
In conclusion
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 problem
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.
[An aside – this statistic has aged quickly and the problem is ever more acute. The latest statistics – the Family Court Quarterly bulletin for July to September 2019 – show that 81% of private law family cases now involve at least one unrepresented litigant; and that in almost 2 in 5 cases – 39% – neither litigant is represented. The crudely drawn red line in the table below is intended to show when the Resolution Manifesto was published and therefore illustrate how the problem has grown even worse since https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/852097/FCSQ_July_to_September_2019.pdf ]
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?
Our solution
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’ views
Others with far greater intellect (not difficult) than me have highlighted their concerns around this Bill.
In terms of concerns about the lack of evidential basis for reform, in August 2018 Emma Hitchings and Jo Miles, respectively of Bristol and Cambridge Universities, wrote a (brilliant – please read) paper setting out their findings from a mixed methods study of financial settlements on divorce, drawing on data from a Court filed survey of c400 cases https://www.nuffieldfoundation.org/sites/default/files/files/briefing%20paper%20Jun%202018%20FINAL.pdf
Brenda Hale at the Resolution conference, April 2018
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
Speaking at the Resolution conference in April 2018, our Brenda sought to answer those who say that adopting the Scottish model of financial provision (as the current Bill effectively seeks to do) is the answer south of the border. Her view that this is not the right answer was made clear :
An alternative view is that marriage is a partnership which should be dissolved with equal sharing of assets accumulated during the marriage but no provision for future needs unless there would otherwise be grave hardship. This is more or less the law in Scotland and Baroness Deech’s Bill would introduce something very similar for England and Wales. It is unsurprising in Scotland, for two reasons. There was no history there of long term periodical payments, whereas periodical payments were the typical form of provision south of the border. And the highly-respectedScottish Law Commissioner, Professor Eric Clive, who was responsible for most of the Commission’s work in family law, had long held the view that there is ‘something fundamentally repulsive about the whole idea of dependent women’. Research by Mair, Mordaunt and Wasoff has found widespread satisfaction with the Scottish law among lawyers and judges; but it is not able to tell us what the parties think or what happens in practice to discarded homemakers with little hope of returning to the job market on the same terms as when they left it.
I agree entirely that it should not be assumed that the highest aspiration for a woman is to become dependent upon a man. It was that assumption which meant that my mother, a trained teacher, had to give up work when she married my father in 1936. But that assumption has long gone and women have the possibility of independence both during and after marriage. However, we cannot ignore the fact that marriage is a partnership in which the spouses (whatever their sex) often play different roles – and often varying over time – for their mutual benefit and that of their children and elderly parents. There are some men who happily undertake the housekeeping and child caring responsibilities traditionally undertaken by women. There are some women who pursue exactly the same working pattern as men have traditionally done. Most are probably somewhere in between. Research has clearly shown that a person who gives up work, even for a few years, in order to concentrate on child care or other family responsibilities will never make up what they have lost. It is a dilemma for us all, but particularly those in the professions who would dearly love to ‘have it all’.
My own view is that the goal of divorce settlements should be, as I said in Miller, ‘to give each party an equal start on the road to independent living’. But that equal start is bound to involve, for most couples, an element of compensation for the disadvantage, often the permanent disadvantage, resulting from the choices made by both parties during the marriage. Sometimes, but not always, the only way to do this is by open-ended periodical payments. To refer to this as a ‘meal ticket for life’ is indeed patronising and demeaning, but making an award for those reasons is not.
Conclusion
Few would defend the current law and argue that it is fit for purpose. It is clear that, for the benefit of all going through divorce (whether trying to self-navigate or asking two sets of solicitors to advise them as to outcome and hoping that they will not get two markedly different answers), something needs to change. And although there is a lot of innovation – the needs guidance note, more online signposting, those who are offering “one couple one lawyer” services and giving couples a common steer – fundamentally, there needs to be a clearer, more principled approach to financial outcomes on divorce.
It shouldn’t be assumed, however, that this is a straightforward choice between discretion and rules. At the moment, the English court has very broad discretion, whilst being bound by reported decisions which go before. The Bill, if enacted, would move things across to the very much more straitjacketed end of the spectrum. But, as with our political climate at the moment, the centre ground is likely to be more palatable. As Jo Miles has said, we are not confronted with a stark choice of discretion or rules. There are in fact many different shades within the palette of colours. The question is the right blend – what is the appropriate mix of rules and discretion? As she also says, there are other colours which can be brought into the mix – unfettered or fettered discretion, rules, rules with exceptions, presumptions, standards, guidelines and principles.
With the greatest of respect, the Divorce (Financial Provision) Bill is too simplistic, lacking in an evidential basis for the stark outcomes it would lead to and highly likely to lead to huge unfairness if ever it were enacted. It is for that reason, and not reasons of protectionism, that all working in this area – lawyers, judges and even those who have been through divorce – must oppose the Bill vocally and campaign for the work suggested by the Law Commission 6 years ago to be started, finally. Who knows, BoJo may soon have ‘Brexit done’ and with what looks like the first period of political calm since the Family Justice Review started in 2010, and a government with a working majority, there may be time properly to focus on this. But please – let’s make sure that the focus is the right one and that any reform in this area is on a solid evidential basis. And let’s get no fault divorce and cohabitation reform over the line first.
Those who have the (mis)fortune to follow me on Twitter, or indeed to know me through having met me (unconventional I know), will be aware that at this time each year I reach peak levels of grumpiness for one particular reason. Yes, I lament the taking down of my Christmas tree and associated festive tat, the dawning realisation that United needn’t make any extra space in their silverware cabinet this season and the rubbish that appears in the winter sales. But my biggest source of irritation? Family lawyers peddling so-called “divorce day” and journalists, anxious to fill column inches and airwaves in the slow period Betwixtmas, falling for (and sometimes even, aiding and abetting) it.
So why does talk of “divorce day” (now as regular at this time of year as the Daily Mail depressing us mere mortals with incessant photos of celebs with ripped abs on far-flung beaches) have me reaching for the Valium? And how, aside from stopping perpetuating the myth that people should be rushing headlong into divorce in January, lemming-like and without consideration of their/their spouse’s emotional readiness, can we ensure that as many as possible achieve the holy grail – a good divorce?
Why are suggestions that tomorrow is “divorce day” anathema to any family lawyers worth their salt?
Borrowing from previous rants on this topic, which I have traced back 13 years (more below) and about which I have been moaning for almost as many, my primary submissions to the court of common sense are fourfold :
There is no evidence that more divorce petitions are issued on the first working Monday in January than any other day of the year
Confession. I like a stat. I get excited about the publication of the Family Court Quarterly Stats; and the prospect of the regular ONS bulletins about marriage, divorce, cohabitation and households in the UK has me virtually reaching for the smelling salts.
Now I will accept, having studied the evidence, the more watered-down version of the “divorce day” story, that enquiries to family lawyers go up in January. Searches for “divorce” online surge. Data provided by Google trends shows that Januaries 2012 and 2016 were the two most popular months for divorce searches in the last decade. That no doubt leads to increased enquiries to law firms (who, in their quest for good divorces rather than divorce day statistics/quick profits, will be signposting enquirers to marriage counselling or planning a dignified, child-focused parting of the ways that does not involve pressing the eject button speedily and without regard to fellow passengers). But that does not, in my and others I know experience, translate into the phone ringing off the hook the first working Monday in January. Nor does it mean that family lawyers should be using this as a marketing tool, rubbing their hands with glee. I always wonder, if those family lawyers simpering on the couches of TV breakfast shows or in the studios of radio stations on the day in question are really that busy, or expect to be, how do they have time to be away from the office and why have they not prioritised clients in crisis over a media blitz…?
However, the whole premise of the more extreme “divorce day” story seems to be that after an unhappy Christmas, a spouse not only sees a family lawyer the first Monday back after the festive hols, but also instructs them immediately to issue a petition. Jurisdiction race considerations aside, that never happens. What of the need to prepare the petition, get the marriage certificate and (so we don’t breach the Resolution Code of Practice) share a draft with the other spouse first? The reality is that we’d trigger a flood of complaints (rightly) about breach of the Code, not to mention a raft of defended divorces and (even if undefended) unhappy, protracted discussions about money and children aspects if we behaved in that bull-in-a-china-shop way.
In 2018, the last full year for which we have figures, the first quarter of the year was when the LEAST divorce petitions were issued (and there was an 18% increase in the number of petitions issued in the second quarter compared with the first quarter). In the three quarters of 2019 so far published, issuings in Q1 lagged behind Q3. Admittedly in recent years there have been some quirks in the stats to reflect the much-pilloried divorce centres having an exceptionally bad quarter performance-wise (or, paradoxically, an influx of temporary staff to blitz the backlog); but the short point is that none of this (or indeed more historic stats) supports the theory that there is a flood of divorce petitions being issued immediately after the Christmas break.
2. It is distasteful
I hope that this limb of my argument is a “slam dunk” – and the growing revolt, from family lawyers and journalists, suggests that it is – so I don’t propose to expand on it. I have previously likened the behaviour of family lawyers who rush out divorce day press releases on Christmas Eve as they put on their out of office, to undertakers anticipating a rush of deaths in January and having a jolly marketing campaign around it. By engaging in divorce day tittle tattle, we are preying on human misery and hoping that as many couples as possible will have had a rotten Christmas. Rival firms’ PR teams – 99% of the time you’re welcome to do what you want, but perpetuating this topic reflects badly on our whole profession. So stop it.
3. It is irresponsible
Why “irresponsible”?
Most clients have never divorced before and look to us for guidance. Many (at last count 81% of family cases involved at least one unrepresented litigant) cannot afford much (if any) legal advice and rely on the internet. In both instances they are looking for norms, in uncharted seas and with waves of emotion washing over them. They need to be able to make informed decisions.
Those who come to me can be at different stages in the grief process. Some have had lots of couples counselling and are certain of their decision to divorce, often (but not always) mutual; others are taking very preliminary advice, fearing the worst, hoping for the best, and wanting to be prepared; and then there are those who were standing on the deck of their marriage, thinking that the waters all around were calm and suddenly being hit by a tidal wave, in the form of their spouse announcing a desire to divorce, the leaver having already put on their life jacket and set sail in the life raft, the leavee floundering around under water. Each will need a different type and level of support, but what binds them is a desire for “norms”.
So what signal does it give those contemplating divorce, at their own or their spouse’s behest, if we continue to peddle the story that people are flocking in droves to end their marriages/to see a divorce lawyer on a particular day in January? Does it become a norm that drives people to make what can be a far-too-hasty decision, when my opening line to clients is always that the one thing I will never advise them on or pressurise about is whether and if so when to end their marriage, as that it such a life-changing, personal decision? And wouldn’t it reflect better on our profession, whilst acknowledging how hard Christmas and New Year can be for families in crisis, to point out that ALL marriages go through rocky patches and intensive counselling should precede hasty decisions? Only those who have already had that counselling, or for whom a marriage is in crisis due to domestic abuse, should be encouraged to start a legal process in January.
4. People are more likely to have a “good divorce” if they have taken time to try to work things through
This, for me, is key. Achieving a good divorce for clients should be the goal of every family lawyer. If my cases encounter turbulence, as the pilot I always reflect afterwards and think, could we have identified that storm cloud in advance and avoided a bumpy part of the ride? Or at least warned the passengers to fasten their seatbelts?
When clients ask what are my tips for a “good divorce” (of which, more below), my starting point is always that they should be sure that divorce is what they really want. Generally our experience as practitioners is that if a couple agree that the marriage is over and feel that they have done their best to save it, they are more likely to have an amicable separation.
Sometimes, of course, divorce isn’t a mutual decision. I always advise that if that is the case and my client is driving the divorce, they should be patient with their spouse and not rush the process; and if they are on the receiving end of a request for divorce, they should ask for time to come to terms with it if needed (which often it is). The most acrimonious divorces tend to be those where one or both spouses isn’t emotionally ready. Therapy can be a useful way to discuss, understand and come to terms with why the marriage ended, which tends to make the legal process smoother. That time can also enable them to think about how to prioritise the needs and feelings of any children, road-test arrangements and work with a family consultant or mediator on how they will work as co-parents post-divorce.
Again, perpetuating the myth that it is normal to bring a marriage to an end in a particular month puts all of this in jeopardy. This is a time for sensitivity, not crass marketing.
How to have a good divorce
For both those who are reading this as they contemplate divorce, and family lawyers mulling over how to ignore the divorce day circus and best assist their clients, I conclude with thoughts on how to have a “good divorce”.
This time two years ago I, along with “top family lawyer” Nigel Shepherd and “queen of no fault divorce” Professor Liz Trinder, appeared on an ITV Tonight special, “Divorce Wars” which covered problems with the existing law and the case for no fault divorce. I was in the studio as it went out and then did a live Q&A online for an hour immediately after transmission. The producer commented that she needed several more of me to deal with the deluge of questions, most from people who just didn’t know where to turn. So I produced (and replicate below) my “Top 10 tips for a good divorce”.
Be sure that divorce is what you really want
All relationships go through a rocky patch; couples counselling can help. I have cases where couples reconcile; mediation can be a good forum for addressing non-emotional difficulties which may help preserve the marriage (e.g. is there lack of financial transparency and a need for a discussion; does one feel exposed on the other’s death and could a Will help; is one coming into family money which they wish to preserve for future generations, through a post-nup?). If, however, you agree that the marriage is over and that you have tried your best to save it, the parting of the ways is more likely to be amicable if you have worked at it.
2. Timing is key
If you’re the one driving divorce, be patient with your spouse and don’t rush them. If you’re on the receiving end of a request to divorce, don’t be afraid to ask for time to come to terms with it. The most acrimonious divorces tend to be those where one or both spouses isn’t emotionally ready. Therapy can be a useful way to discuss and understand why the relationship ended, which tends to make the legal process smoother. I recall one case years ago where my client had been told by her husband of 40 years that the marriage was over; she was understandably devastated and unable to do anything other than cry throughout our initial meeting, processing nothing I was saying. I phoned her husband’s solicitor, told him to back off talk about issuing a petition, and sent my client off for intensive counselling. A year later she took ownership of the process, issuing divorce proceedings herself and having her say on the finances at a round-table meeting (which soon settled things).
3. Put the children front and centre
Prioritise the needs and feelings of any children, ensuring that they have a relationship with both parents during and after divorce provided that it is safe. However much bad feeling exists, marriage breakdown is never the fault of a child. Exposing them to conflict, and/or forcing them to take sides, risks causing them lasting emotional harm. As family lawyers, we cannot stress this enough.
4. Don’t cut off communication
Ensure a line of communication is kept open with your ex during the divorce and (where there are children) afterwards, only unless there are very good reasons for not doing so. I have many cases where couples will not communicate with each other, which adds significantly to legal costs (we are a very expensive letter box) and is miserable for children. If direct contact isn’t possible at first, perhaps agree a third party through whom you can communicate or a means of communication like WhatsApp or email (keeping the tone respectful at all times). Where I am mediating a couple who are having difficulty communicating in a civilised way/at all, I encourage them to copy me in on their communications for a time (without charging them or engaging at all) as this tends to make them think twice about the language they are using. As parents, you need to be able to work together for a number of years and cannot run back to lawyers whenever there’s a minor disagreement.
5. Be open
Be clear about what you want from the divorce as the sooner you explain where you’re coming from and what you want, the more likely it is that your ex will see your viewpoint. At the same time, be pragmatic and open to compromise – entrenched positions lead to delay, acrimony and cost. The best outcomes are where both spouses leave the table slightly unhappy, rather than having a winner and a loser. And be transparent about your finances.
6. Be realistic
There needs to be a dose of realism brought to every case. You should take advice about what you may be entitled to expect, in terms of money and children (and if you can’t afford full-service advice, invest in a couple of hours of tailored advice and signposting, which some firms offer for free. There is a raft of information available online but it’s worth getting a steer as to how the law may apply to your case). Most cases that end up in court do so either because one person is trying to achieve an unrealistic outcome, or because one has not been fully transparent about their finances.
7. Work together
Going to solicitors, or a mediator, with a measure of mutual understanding about the financial picture, and even an idea of how the finances or children issues may be resolved, is the most cost-effective way forward and likely to lead to the quickest outcome. Many couples come to me as a mediator clear about what they think they want to achieve but wanting me to reality-test their agreement and highlight any points they may not have thought of. Openness to solutions is key.
8. Court isn’t the “norm”
Mediation or collaborative practice are the best processes for achieving a good divorce. You and your ex will be directly involved in discussions and will be able to hear what the other has to say, but in a supported environment. An arrangement agreed between you and your ex will likely be more successful in practice than one imposed by a judge (and cost less).
9. Educate yourself
There is a lot of information available online about divorce. Although it is sensible to have legal advice, you can save on costs if your solicitor does not have to explain process and their involvement is limited to advising how the law may apply to your case. Make sure you understand how your solicitor charges, be clear about the level of involvement you expect and make sure you agree a budget for costs and stick to it.
10. Look after yourself
No matter how amicable it is and whatever the circumstances, divorce can be tough and take its toll. Look after yourself and keep your friends and family close. A support network (and, in most cases, a course of therapy for those more difficult moments as you go through divorce) is very important, so you don’t feel isolated or overwhelmed. I have some clients who have continued with therapy for years after a divorce as they have found it helpful; decide what is best for you.
Hopes for 2021
I say it every year, and the phalanx of “divorce day” conscientious objectors is growing; but next year I hope that
There is no #DivorceDay referenced on Twitter (except to shout it down, as in this excellent thread)
There is no more need for journalists to call out this nonsense
These headlines, and lawyers’ press releases leading to them/simpering TV sofa appearances will be a distant memory
Over the festive period, and having seen my many posts on the subject, someone contacted me to confess to being “ground zero” for the divorce day phenomenon, saying they concocted the story back in 2007. For their sake, I shall say no more.
The last day of the decade started abruptly for me. I was awoken from my slumbers in a hotel bed in Berlin by a text from a producer at BBC Radio London asking if I’d go on their breakfast show to talk about the advent of civil partnerships for all.
A potted history
The fact that the first civil partnerships for opposite sex couples are being formed from today in England and Wales is down to the perseverance of one couple, Charles Keidan and Rebecca Steinfeld.
Same sex couples have been able to form civil partnerships since December 2005, at a time when marriage wasn’t available to them. However, the introduction of same sex marriage in March 2014 created an anomaly – same sex couples had the option of two types of formalised union, but opposite sex couples only one – marriage.
Charles Keidan and Rebecca Steinfeld took the issue to court, having to go all the way to the highest court in the land, the Supreme Court. In the meantime, government prevaricated over whether to abolish civil partnerships altogether, given that marriage was available to all. However, the Supreme Court concluded that government had had long enough to ponder that issue; and declared that it was in breach of opposite sex couples’ human rights for there to be such inequality of treatment between same sex and opposite sex couples.
In October 2018 Theresa May announced that government would change the law. Tim Loughton MP had already introduced a private member’s bill. Regulations were laid before Parliament in October 2019 which amend the eligibility criteria to extend civil partnerships to opposite sex couples in England and Wales but maintain the position on conversion rights so that only same sex couples can convert their civil partnerships to marriage for now, pending public consultation.
The position in Scotland and Northern Ireland
Issues relating to civil status are devolved. In June, the Scottish government announced a Bill would be introduced to ensure mixed sex couples have the same choices of marriage or civil partnerships. The Civil Partnerships (Scotland) Bill was introduced in September and is currently pending. In Northern Ireland, opposite sex couples will be able to enter into civil partnerships from 13 January 2020.
How popular are civil partnerships likely to be?
The latest marriage statistics, for 2016, were published in March. They show there were just under 250,000 marriages in England and Wales in 2016, c97% – around 242,500 – between opposite sex couples. That represented a 1.7% increase on 2015. There were c7,000 marriages between same sex couples, an 8.1% increase from 2015. Note that 2016 was only the second full year of marriage being available to same sex couples.
Marriage rates are at historic lows, despite a small increase in the number of people who got married in 2016.
Government estimates that 84,000 civil partnerships between opposite sex couples will be formed in year 1. Inevitably there will be an initial spike to reflect the fact that people who have waited many years for this development will now take advantage of the change in the law and this is likely to tail off.
Extrapolating from the experience of same sex couples – in 2006, the first full year of civil partnerships being available to them, there were 16,100 civil partnerships formed. This levelled off at around 6,000 per year until same sex marriage became available in March 2014; thereafter the number of civil partnerships formed has been small –
In 2016, the most recent year for which we have statistics for both types of union, there were 7,019 marriages of same sex couples and 890 civil partnerships; or about 7 times as many marriages as civil partnerships. If behaviours among opposite sex couples are the same, based on 2016 marriage numbers we may expect c30,000 civil partnerships a year. However – and it remains to be seen – it may be that marriage is especially popular among same sex couples as it was so hard fought for; and given how long opposite sex couples have waited for civil partnerships, they may be more popular than my crude analysis suggests.
Is there any difference between marriage and civil partnerships?
Civil partnerships bring all the same rights and responsibilities as marriage
their formation is slightly different – there is no solemnised form of words, just the signing of a civil partnership document. But the same requirements as marriage apply in terms of age, notice etc
there is the same eligibility for state pensions and the same tax and inheritance rights
the same remedies are available on dissolution of a civil partnership as on divorce – property adjustment, lump sums, maintenance etc
an important distinction is that whilst an opposite-sex marriage will be recognised universally, a civil partnership will not be recognised in every country. This is important for couples to be aware of if moving overseas.
What’s all the fuss? Why not just get married?
This is a commonly asked question.
Legally, the fuss arose because it was clearly discriminatory to deny civil partnerships to opposite sex couples while they remained available to same sex couples. Many assumed government would deal with the anomaly by abolishing civil partnerships altogether, especially once their popularity waned among same sex couples with the advent of marriage.
Opposite sex couples wishing to enter a civil partnership often cite celebrating not getting married. They don’t like the convention and vows associated with the institution (even as we move towards liberalising they way in which marriages are formed https://www.gov.uk/government/news/first-ever-marriage-review-to-free-up-dream-wedding-venues ). They cite its patriarchal roots and outdated nature.
Ultimately, it’s about choice. Statistically, relationships are likely to flourish if a couple has committed to each other in some tangible way. Although, in my practice, I see some excellent examples of cooperative co-parenting post-separation, and children are more likely to be harmed by being exposed to conflict than the fact of separation per se, generally speaking the most stable upbringing for children will be if they are living with parents who are married or CP’ed.
Some, such as Rebecca Steinfeld and Charles Keidan, are savvy and acutely aware of their lack of legal protection if they live together without formalising their relationship. Wishing to benefit from the same tax breaks as married couples, and the same treatment if the relationship ends through separation or death, are other drivers for people wishing to enter into a civil partnership.
So does this all mean that cohabitation reform is unnecessary?
Although the law changed in Scotland in 2006 to provide property rights for these couples on separation or death, the law has remained stubbornly unchanged in England and Wales (despite Law Commission recommendations in 2007) for many years. Private members’ bills have been introduced in the House of Lords but languished/fallen with successive elections https://researchbriefings.parliament.uk/ResearchBriefing/Summary/LLN-2019-0030
The problem is that the majority of cohabiting couples are ignorant of their lack of rights until it’s too late. They assume, wrongly, that they have a common law marriage and the law will protect them. It will not. https://www.comresglobal.com/polls/resolution-cohabiting-couples/
So while we celebrate the introduction of civil partnerships for all from today, let’s not forget the plight of cohabiting couples and campaign for law reform for them in the near future. Not all know that they have to formalise their relationship in some way to acquire rights; and given that that takes two people, not all can. Changing the law to protect them safeguards children. It has got to be right that we recognise the reality of what is happening in modern society.
For now…
Let’s celebrate the many wonderful couples forming civil partnerships today
Jo's Family Law blog 