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

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

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

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

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

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

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

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

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

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

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

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

3. Never use your children as a weapon

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

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

12 May 2021

Resources –

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

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

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

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

Resolution resources –

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

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

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

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

100 days of lockdown – in photos, Tweets and news

It is said that today, Tuesday 30 June marks the 100th day of lockdown. [I take issue with that, by the way; the first FULL day of lockdown was Tuesday 24 March which, by my reckoning, gives tomorrow that mantel. PoTAYto/poTARto]. Either way, it is some milestone, even if confusion reigns about the day on which it is reached and indeed what sort of lockdown we are presently in.

Over the past 100 days, with the daily commute suspended in place of working from home, there has been barely a day when I haven’t explored my home town, Brighton on foot. In truth, in 10 years of living in Brighton I haven’t spent as much time on its streets and beaches as I have in the past 100 days. Those who follow me on Twitter will know that I have posted a LOT of photos (and taken countless more).

So as we approached 100 days of lockdown, I looked back over my photos and reflected on lots of things – what glorious weather we have been fortunate to have for the most part; the fabulous sunrises, sunsets and strawberry moons; and how wonderfully peaceful Brighton has been. With the gradual easing of lockdown and especially with the hot weather latterly, there has been a return to crowds, some anti-social behaviour such as littering and a clear divide between those who are anxious about a second wave of Covid and those for whom social distancing is, in effect, out of the window.

Like many I suspect, I approach the next phase with a mixture of feelings – a keenness for a return to normality tempered with hope that we will keep some of the best bits of lockdown – not least a return to family values, emphasis on wellbeing and the positive effects on the environment of us travelling less far and widely. And more than anything, I am looking forward to getting my hair cut.

A photographic chronology of 100 days of lockdown, peppered liberally with my Twitter ramblings and a reminder of some key lockdown milestones, follows.

Monday 23 March – day 1

After weeks of pressure, Boris Johnson announces lockdown, confining people largely to their homes. Aside from key workers, the public are allowed to leave their house only once a day for exercise/essential shopping. All shops selling non-essential goods are told to close, gatherings of more than two people in public are banned and all events (including weddings, excluding funerals) are cancelled.

Tues 24 March – day 2

Confusion reigned over the guidance issued overnight for the children of separated parents and whether or not they could pass between two homes during lockdown.

Weds 25 March – day 3

Thurs 26 March – day 4

Support package for self-employed revealed, after multi billion pound package of measures to prevent mass layoffs/improve the welfare system is announced a few days prior. Clap for our Carers begins.

Fri 27 March – day 5

PM and Health Secretary test positive for Covid.

Sat 28 March – day 6

Mon 30 March – day 8

Tues 31 March – day 9

Thurs 2 April – day 11

Fri 3 April – day 12

Sat 4 April – day 13

Sun 5 April – day 14

Queen delivers message of hope to the nation, as Downing Street announces the PM has been admitted to hospital.

Mon 6 April – day 15

Tues 7 April -day 16

Weds 8 April – day 17

Today is widely reported to be the day when the peak of daily Covid-19 deaths occurred in England.

Thurs 9 April – day 18

Fri 10 April – Good Friday – day 19

Sat 11 April – Easter Saturday – day 20

Sun 12 April – Easter Sunday – day 21

PM released from hospital. Covid death toll in hospitals passes 10,000.

Tues 14 April – day 23

Weds 15 April – day 24

National Police Chiefs’ Council says more than 3,200 fines for alleged breaches of lockdown laws were issued by police in England between 27 March and 13 April.

Thurs 16 April – day 25

Dominic Raab announces extension of lockdown measures for at least three weeks.

Sat 18 April – day 27

Sun 19 April – day 28

Mon 20 April – day 29

Government announces that over 140,000 applied to the job retention scheme on the morning of its launch.

Tues 21 April – day 30

Weds 22 April – day 31

Prime Minister’s Questions conducted by video link for the first time ever.

Thurs 23 April – day 32

Millions become eligible for a Covid test under an expansion of the testing programme for essential workers and their households.

Fri 24 April – day 33

Sat 25 April – day 34

Sun 26 April – day 35

Mon 27 April – day 36

Boris Johnson back in Downing Street. Government faces calls for full action plan to tackle rising tide of domestic abuse; and to introduce new measures to ensure employers assess the risks of people returning to work before easing restrictions.

Tues 28 April – day 37

Thurs 30 April – day 39

Boris Johnson announces that the country is past the peak of the disease and the government begins to look ahead at easing certain restrictions. Captain Tom Moore celebrates his 100th birthday.

Fri 1 May – day 40

Sat 2 May – day 41

Mon 4 May – day 43

Tues 5 May – day 44

The UK’s declared death toll rises to more than 32,000 to pass Italy’s total and become the highest in Europe. Trials of new Covid contact-tracing app begin on the Isle of Wight.

Weds 6 May – day 45

Professor Neil Ferguson quits.

Thurs 7 May – day 46

Fri 8 May – day 47

75th anniversary of VE Day and widespread media reports of mass gatherings at parties.

Sat 9 May – day 48

Sun 10 May – day 49

Boris Johnson sets out headline points of a roadmap for easing lockdown, though the detailed document is not published until the following day. He says phased reopening of schools and non-essential shops in England could potentially begin from 1 June if transmission can be reduced and people who can’t work from home should be actively encouraged to return to their jobs. Unlimited exercise granted in England. Leaders of Scotland, Wales and Northern Ireland refuse to adopt the new “stay alert” slogan and said insufficient details had been provided.

Mon 11 May – day 50

Tues 12 May – day 51

Announced that the furlough scheme, supporting 7.5 millions jobs, will be extended to the end of October with employers expected to pick up a share of the bill from August.

Weds 13 May – day 52

Boris Johnson urges those who can’t work from home to go back to work; people are allowed out of their homes for unlimited exercise and garden centres can reopen. People can meet one other person outdoors as long as they stay at least 2 metres away.

Thurs 14 May – day 53

Fri 15 May – day 54

Sat 16 May – day 55

Sun 17 May – day 56

Government announced to be investing a further £84 million in the hunt for a vaccine.

Tues 19 May – day 58

Weds 20 May – day 59

A testing and tracing system, seen as the key to easing the lockdown, will be up and running by 1 June but the rollout of the contact tracing app will come later.

Thurs 21 May – day 60

Fri 22 May – day 61

Quarantine measures announced requiring travellers arriving in the UK from 8 June to share contact details with the authorities and then self-isolate. Reports emerge that Dominic Cummings broke lockdown.

Sat 23 May – day 62

Sun 24 May – day 63

Boris Johnson backs Dominic Cummings and announces a phased reopening of schools.

Mon 25 May – day 64

Dominic Cummings gives THAT press conference about his trip to Durham and drive to test his eyesight.

Tues 26 May – day 65

Thurs 28 May – day 67

Fri 29 May – day 68

Sat 30 May – day 69

Sun 31 May – day 70

Mon 1 June – day 71

The government reopens all schools for Reception, Year 1 and Year 6 pupils. Groups of 6 people allowed to meet in parks and back gardens. Socially distanced barbecues allowed.

Tues 2 June – day 72

Weds 3 June – day 73

Fri 5 June – day 75

Sat 6 June – day 76

Sun 7 June – day 77

Mon 8 June – day 78

Ministers introduce quarantine measures for all arrivals in the UK. Dentists allowed too reopen for the first time for non-emergency care.

Tues 9 June – day 79

Gavin Williamson tells MPs that primary schools in England won’t be able to welcome all pupils back for a month before the summer holidays as the government had previously hoped.

Thurs 11 June – day 81

Fri 12 June – day 82

Sat 13 June – day 83

The first social bubble, the “support bubble” is announced, with single person households allowed to meet and stay overnight with another household.

Sun 14 June – day 84

Mon 15 June – day 85

All non-essential shops are given the green light to re-open as long as they meet new social distancing guidelines. People can also return to zoos, safari parks and places of worship. Face masks become mandatory on public transport in England. All pupils allowed to return to school if possible to do so with strict social distancing rules in place including 15 pupil caps on classes.

Tues 16 June – day 86

Weds 17 June – day 87

Premier League football restarts after 100 day absence.

Thurs 18 June – day 88

Government announces it is ditching ambitions to develop its own software for tracing app, and will instead work with Apple and Google. App is now hoped to be ready by the autumn/winter flu season.

Sat 20 June – day 90

Summer solstice.

SIL’s 40th birthday

Sun 21 June – day 91

Mon 22 June – day 92

Tues 23 June – day 93

Government announces relaxation of 2 metre social distancing rule to “one metre plus” from 4 July, a shot in the arm for the hospitality industry. From 4 July families will be able to reunite, pubs will reopen and people can go on holiday in England. Cinemas, museums, art galleries, bingo halls, community centres, hair salons, work canteens, outdoor playgrounds and outdoor gyms will be able to reopen.

Weds 24 June – day 94

Scottish government announces it intends to allow outdoor hospitality like beer gardens to reopen on 6 July, non-essential shops within indoor shopping centres from 13 July and households will be able to meet indoors with people from up to two other households from 15 July.

Thurs 25 June – day 95

Northern Ireland announces social distancing requirements will be reduced from two metres to one as restaurants and hotels prepare to reopen on 3 July. Other reopenings include nail parlours and beauty salons on 6 July, playgrounds on 10 July and the resumption of competitive sport on 17 July. The Welsh government has no timetable for reopening pubs and restaurants.

Fri 26 June – day 96

After thousands flock to beaches during a heatwave the PM warns against taking liberties with social distancing rules. Quarantine measures for those entering the UK are set to be scrapped for some counties and replaced with a traffic light system based on a country’s Covid risk.

Sat 27 June – day 97

Sun 28 June – day 98

Mon 29 June – day 99

Tues 30 June – day 100

JCE, 30 June 2020

Educating the educators, policing the parents, safeguarding children? Schools and separation

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.

Trying to work out the number of children of separated parents is harder. The latest ONS bulletin Families and Households in the UK – 2019 was published in November – https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2019

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?

In England and Wales, there were 90,871 divorces of opposite-sex couples in 2018 and 428 divorces of same-sex couples. https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2018

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.

What we do know is that births within marriage/civil partnerships have gone down significantly in recent decades, reflecting the decrease in marriage numbers and increase in cohabiting couple families https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/livebirths/bulletins/birthsbyparentscharacteristicsinenglandandwales/2016

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?

Continuing my passion for stats, I give you the DfE publication Schools, pupils and their characteristics, January 2019, published last summer https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/812539/Schools_Pupils_and_their_Characteristics_2019_Main_Text.pdf

Headlines :

  • 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.

What is particularly striking (and well-known) is that the teaching workforce has not been keeping pace with the growth in pupil numbers, adding to the pressure on teachers within the system – see School workforce in England : November 2018 published last summer https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/811622/SWFC_MainText.pdf

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.

Guidance for schools about separated parents

The DfE publishes/keeps regularly updated a guide for schools, Understanding and dealing with issues relating to parental responsibility https://www.gov.uk/government/publications/dealing-with-issues-relating-to-parental-responsibility/understanding-and-dealing-with-issues-relating-to-parental-responsibility#dutiesundereducatonlaw

It defines

  • Who is a parent
  • 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.

I have referenced already the Keeping Children Safe in Education (“KCSIE”) statutory guidance https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/835733/Keeping_children_safe_in_education_2019.pdf

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

Talking to your children about the divorce

Tips for parenting during a difficult divorce

The Parenting Charter is also a useful resource to which parents should refer during their separation

A plug also for Only Mums/Only Dads’ fab book, 101 questions answered about separating with children, a copy of which every newly separated parent should acquire/be encouraged to acquire https://bathpublishing.com/products/101-questions-answered-about-separating-with-children

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.

Jo Edwards

Vanquishing “gold diggers”, disregarding fairness? The future of financial remedies on divorce

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.