How to Protect Children in Divorce

No-fault divorce is only the start of essential reform for separating families, and social and structural change must follow.

No-fault divorce may well be universally welcomed as it comes into effect next week, but it is only the start of wider change needed for separating families.

The harmful impact of adversarial battles over children must be addressed and parents encouraged and supported to agree arrangements in separations that are safe and in a child’s interests. The mental health of our future generation depends on it.

The Family Solutions Group, launched by Mr Justice Cobb to consider the needs of families who separate, recently called for change at an event attended by the attorney-general and the president of the family division of the High Court.

There are three obvious steps that will improve the current harmful situation.

First, separating families need dedicated government oversight and co-ordination. It is striking that no Whitehall department at present takes responsibility for the 280,000 children whose parents separate every year. These families fall within the remit of the Ministry of Justice, so the only known provision is the family court — necessary for some but unhelpful as the only provision for all.
As the division’s president, Sir Andrew McFarlane, said, the courts should be the last resort rather than a first port of call for separating parents, preserving the justice system for cases involving domestic abuse, safety issues or where a court decision is necessary.

The government must go further and refocus its policy and funding to put child welfare at the centre of family separation. There needs to be a co-ordinated policy to ensure that a family solutions system sits alongside the family justice system so that children are properly protected. It is encouraging that Suella Braverman, the attorney-general, agreed to convene cross-government departmental discussions to try and establish co-ordination and support for separating families.

Secondly, families need early information and support when they separate, so their needs can be assessed, and they can access the right help. That may include legal advice and mediation but also parenting support and child consultation.

Thirdly, society must change its language and move away from fighting and battle talk and outdated terms such as custody and access. These should be replaced with co-operative parenting, parental responsibility and arrangements for children. This re-framing needs to be echoed in schools, healthcare, workplaces as well as in the family justice system and the media.

The cost to the British taxpayer of family separation is about £51 billion a year, equivalent to the UK’s entire defence budget. As we celebrate the milestone of amended divorce legislation, we must be mindful that this is just the start. We need to put children first if we want true progress.

This article was written by Elizabeth Fletcher of Family Law in Partnership and Charlotte Bradley of Kingsley Napley for The Times. It was published in The Times on 31st March 2022.