A judgment reminding parents what the family court expects from them following a separation

Last month, in a long court judgment about three children (see here), a judge set out some reminders about the family court’s expectations of parents in respect of their ongoing behaviour towards one another post separation – this forms part of the exercise of their Parental Responsibility. In short, following separation, the court expects parents to work in partnership with one another in order to support their child’s ongoing relationship with both parents, which promotes their child’s well-being. (To make clear at the outset, this blog is not appropriate for parents who are themselves at risk of any form of harm from their child’s other parent, or who have genuine reason to believe that their children may be at risk of harm.)

We’ve blogged about parental responsibility before, but we’re blogging about it again because the three Cs - courteous, considered and constructive parental communication between parents - are crucially important to children in providing them with the opportunity to experience a healthy adjustment to their parents’ separation. If parents remain in high conflict, it is inevitable that – in one way or another - children get pulled into their parents’ conflict. This prevents children from enjoying an unrestricted and natural relationship with each parent, which, in turn, negatively affects their feelings of well-being and even their core identity. As one leading expert puts it, kids lose the chance just to be care-free kids!

The particular judgment of X, Y and Z involved children who had been caught between their parents’ very difficult relationship for a number of years. First the children had lived in a shared care arrangement, then they’d been moved to live with their mother, then with their father and ultimately they were to live with their mother again in the hope that in the not too distant future they could return to the original shared care arrangement! The judge found that the father in this case did not promote the children’s relationship with their mother in the way that he should and in exercise of his parental responsibility. The judgment is helpful since it involves the experiences of a sibling group of three, showing that each individual child is different and responds individually to his or her environment. In this case, one sibling was very deeply affected by all the change and parental conflict, one was largely unaffected and one was moderately affected.

Parental Responsibility is a legal term. It appears in an Act of Parliament called the Children Act 1989, which essentially spells out what is expected of parents, and (if necessary) the state, in protecting the welfare of children during their minority. In the Act, Parental Responsibility is defined as:

all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

When the court is tasked with helping parents who are in high conflict and who cannot together reach agreement about the arrangements for their children, it is at pains to remind parents about the importance and long-term benefit to children of having parents who can co-operate, or at the very least, keep children right out of their conflict. In this case, the judge’s comments included that:

  • Parents should encourage children to see their other parent and also be positive about the child’s other parent. It is an integral aspect of parental responsibility that parents should work to put aside their differences to ensure that their children have relationships with both parents.

  • Parents are expected to promote, encourage and ultimately facilitate their children’s contact with their other parent. If a child is resisting it without good reason, a parent is expected to take control and provide a secure, firm set of boundaries around the children. It is not acceptable for a parent to shelter behind the child who might be resisting the contact, whatever the age of the child. The judge mentions what the President of the Family Court, Sir Andrew McFarlane, said in an earlier decision of the family court:

The responsibility of being a parent can be tough, it may be 'a very big ask'. But that is what parenting is all about. There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some 'boring' elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent's job, exercising all their parental skills, techniques and stratagems – which may include use of both the carrot and the stick and, in the case of the older child, reason and argument –, is to get the child to do what it does not want to do. That the child's refusal cannot as such be a justification for parental failure is clear…

When parents are separating, language used by those around them may often be by reference to the relationship ending. While this is true, it can be helpful to think in terms of the relationship as partners with a child’s other parent as drawing to a close, but accepting that a parenting relationship of sorts needs to be established and maintained – investing time to think about what this really means and putting it into practice, although undoubtedly challenging, is wholly worthwhile. Each situation is unique - taking time to consider what a manageable and successful parenting relationship could look like for each individual family is vital. For example, what does each parent need from the other, what can each tolerate and how can parents work together to make the arrangements a success in the best interests of their child or children? Generally, the family judges look at each child’s rights, rather than the rights of the child’s parents. In respect of parents, the court is looking at their responsibilities to the child, the emphasis being on their responsibility to create a healthy environment for their children following their separation.

At this firm, our solicitors listen very carefully to your position and concerns. In turn, we give appropriate advice about what you can do proactively to try to manage your situation, what other professional support might be beneficial (such as individual or family therapy), and help you consider what you want to achieve for your children with an eye to the short, medium and longer term – a holistic approach is best. If every family member can transition healthily, the results will be better for everyone overall. If you would like to talk to one of our family solicitors about this blog, please visit our children specialists’ team page, here.

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