Divorce & Separation: A Better Way

Sir Andrew McFarlane, our ‘Head of Family Justice’, last week marked the half way point in his tenure with an inspiring speech setting out his priorities for the next 3 years.  It is well worth a read.

He identified two topics to which he intends to devote additional time, effort and resources.  The first is ‘transparency’ – the process by which the Family Court may be made more open to the wider public and we eagerly await the conclusions of his ‘Transparency Review’ later this month.  The second is to improve the experience of family conflict when the welfare of children is involved and the President will be aiming to achieve this by using the excellent Family Solutions Group Report 2020 as the blueprint for radical change.

There are a number of exciting initiatives outlined in the Report, and top of the list is the introduction of a ‘framework and language which promotes child welfare and a co-operative parenting approach’.  The importance of language can not be understated.  The relationship between our emotions and the words we hear and the words we use is a complex and fascinating area. The excellent guest blog by Dr Emma Loveridge of Rafan House is an essential read for us all. You might also want to listen to our recent podcast on communicating well during divorce.

The evolution of the language around disputes involving children has been ongoing since the introduction of the Children Act 1989 and the aim to move away from the term ‘custody’, for obvious reasons, but sadly all still prevalent in common parlance.

In April 2014, the Children and Families Act removed the labels ‘Residence Order’ and ‘Contact Order’ from the statue book and replaced them with the term ‘Child Arrangements Orders’ but unfortunately this became the ‘lived with’ order and those who do not.  There is no doubt that more urgently must be done.

The excellent article by Helen Adam, ‘Language Matters: time to reframe our national vocabulary for family breakdown’ [2021] Fam Law 1015, referred to by the President in his speech is exactly the conversation starter we must have now. Helen says:

‘Separating parents should not be looking for a 50:50 or some other proportionate division, as between two of them after separation.  They all need to understand that the split is fixed at ‘100:100’ in terms of parental status and parental responsibility, subject to any order of the court.’

This reminds me of a point made by Christina McGhee, in her book Parenting Apart: How Separated And Divorced Parents Can Raise Happy and Secure Kids [2011], which goes something like this; Children see themselves as being made up of both parents.  When one parent criticises the other, the child experiences that criticism as an attack on themselves.  It can’t be delineated, children see themselves as 100% mum and 100% dad and the stance of parents in relation to their responsibilities back to those children needs to be from this 100% starting point too.  If we start from this point, there is potential for real change for families in crisis.