Children’s Mental Health Week 2021 – Making Separation and Divorce Easier for Children.

The other evening whilst babysitting my 6 year old cousin, he says ‘if your mum and dad are arguing, you need to tell a grown up at school’. This rather took me aback, but in a refreshing and reassuring way. That his primary school was already raising this and encouraging children not to bottle up worries and to be open about talking about difficulties, or perceived difficulties, at home was heartening.

It has been reported that some 280,000 children experience parental separation each year. This report recognises that parental conflict harms children. It causes harm at the time of the breakup, but it also risks creating longer lasting damage, or as the report puts it, ‘casts a long shadow over the child’s life course’. Research suggests that children subject to parental conflict have a greater chance of suffering emotional and behavioural issues later in life. It can also affect academic performance, mental health, social interactions and resilience.

In recognition of Children’s Mental Health Week 2021, we explain how best to help children through a divorce or separation. We understand the difficulties that children of all ages face particularly when going through an upheaval such as experiencing their parents going through a divorce or separation.

Which brings me on to the latest report on the impact of parental separation on children. ‘What about me?’ from the Family Solutions Group, led by Mr Justice Cobb. The report puts those children front and centre in a process that too often sees them as commodities in a transactional negotiation. There is acknowledgement in the report that the UK is behind other jurisdictions in addressing problems arising from family breakdown, and the systemic change that is needed could take 5 to 10 years. However, there is also excitement among its authors and professionals that this could be the all-inclusive approach that is so desperately needed. One of the report’s core recommendations is to establish a dedicated government minister and department, to give separated families the focus and oversight they need and deserve.

We truly understand that:

• We are all tired and especially tired of these new lives that continue to be imposed upon us. Some are very much more in the front line and their keeping on as they do is truly a thing of wonder.
• Families are more at risk as this pandemic unrolls, particularly in those times such as now when it feels more of a step-back than a step-forward.
• The risks to our relationships are very great in these times; and
• We know that children are at risk where separations happen and many times more so when those separations are carried out badly.

As family lawyers working with parents, we know that when separations happen:

• Parents need solutions so they can get back to the job of being parents.
• Minimum resources (time/emotion/money) should be swallowed up in the transition of separation so that maximum resources are left intact for the future.
• Children need their voices heard in the transition.
• And we all need to work hard to create solutions that meet children’s needs.
• Above all children need closure and peace so as to be protected from the fall-out of separation as best as possible.

Children need to know that their parents are doing well so that they can carry on with the job of being children rather than being pulled one way or the other or left out in the cold as the adult challenges of applying principles to circumstance to find a way forward goes on inside or even just the challenge of finding out what the principles are.

As family lawyers, we advise clients that court should be the last resort. It is a necessary backstop, but it is a blunt instrument and inevitably something of a lottery given judicial discretion. Whether we like it or not, different judges have different views on what is best for children. What is more, in practice, often what is in dispute is not susceptible to legal remedy. Nowhere in the statute book does it say whether a child should be allowed to go to football club on a Friday night, have their hair cut every six weeks or six months, or at which junction of the M4 the handover should take place.

Unless there is a risk of harm (in which case, court is the place to go) we try to keep issues surrounding the children away from acrimonious lawyers’ letters and out of court. These are often better resolved by referring couples to mediation or to a child psychologist or therapist, who are more qualified than lawyers to help parents navigate and resolve issues between them, and to guide them in supporting their children together, as much as possible through what will inevitably be a traumatic period.

Every family is different and what works for some children will not work for others. For example, some cannot cope with staying overnight midweek at the other parent’s house, and prefer a week on / week off arrangement. Whereas for others, a week will be too long away from one or both parents. The law provides neither insight nor answers to these matters.

Many will find their best steps adopt the following:

• The adults themselves
  We can only parent our children well if we are in a good place to do so. We need to attend to ourselves and get the support we need, in particular to manage the trauma of the end of a relationship.

• Safety
  The non-negotiable for every child is ensuring their safety from emotional and physical harm and all of the other ten principles are subject to this over-arching requirement.

• The parents’ relationship
  Where our interactions with the other parent are driven by our own needs and based in the history of the relationship, we are going to struggle to achieve the sort of working arrangement that will enable the child’s needs to be addressed well. A child’s needs are best met by parents continuing to work together as a team. Even where you find that the other parent is not doing this, you still need to steer the course that is focused on the child’s needs. It is the thing most likely to generate change and enable the other parent to become the best parent they are capable of being.

• Ground rules
  Work out good ways to raise and negotiate issues relating to your children.

The report from the Family Solutions Group recommends a high profile public campaign, because we do need to bring about a general mind shift, not only of individual couples, but of the legal system and the wider public. We need to get away from the language of courts and legal rights and towards an understanding of child welfare, promoting the rights of children to enjoy a relationship with both parents (provided there are no safety concerns). We need to start by changing the language. For example, the term Custody has no place in these matters. Children are not objects or inmates. Likewise, in this context, parents do not have rights – they have responsibilities. The child has a right to a relationship with their parent or parents, not vice versa. A fact that is easily forgotten.

• Informing the child
  Good management of the discussion where the child is told of the impending separation is important. Ideally together, tell the children of the changes to come and reassure them – not just once, but also dealing with the questions during the after-shock period. Be honest and find a reassuring way of talking through the things that you don’t yet know. This stage is explored further below.

• Staging the separation
  How the separation is staged will be the child’s first experience of how separated parenting is going to be. Doing it well, with proper information, good timing, joint management and positivism can deliver particular benefits. Don’t worry if things don’t go well. It is usually better than the child’s worst fears and there are usually second chances.

• Goals and principles
  Many parents have found it helpful to pause and consider what sort of childhood they want their child to be able to look back upon. It has helped them to be clear about what to promote and what to avoid. Working out these “self-evident truths” that will underpin how the parenting will work promotes better communication, faster decisions and consistent approaches for the future. Writing them down into a parenting plan will embed the approach further.

For many families, this will include:

• the imperative of promoting the best relationship possible with each parent.
• maintaining proper boundaries – so that the child is not burdened with adult issues.
• being honest with the child over the issues that do concern the child (but in an age appropriate way) and listening.
• putting yourself in the child’s shoes and understanding their position, which will include recognising the difficulty for the child of seeing conflict between the parents.
• being relentlessly positive about the other parent.

• Good arrangements
  This is the way that parenting will work over the first chapter, in line with those principles. Good arrangements will also provide the means for assessing different options for working out the child’s arrangements between the two homes and how important times (holidays, Christmas and birthdays) are to be structured. It is all too easy to sink into exchanges over who was to blame for the end of the relationship and have the arrangements fed by grievance, rather than what must remain your priority: namely what will work best for the child.

• Family story
  We define ourselves by the stories that we tell. Children do too, perhaps even more so. Shaping and explaining the separation in an authentic way that also enables the children to make sense of it to themselves will help them, and it may enable more of that context around the family of relatives and friends to remain intact rather than their being alienated and polarised into different camps on one parent’s side or the other.

But families cannot wait, children will be eager for an explanation that can help them make sense of what is happening to their world and will struggle without it. Therefore a good enough account needs to be managed quickly, even if it is refined later. Often third-party help is particularly important here.

• Changes
  Families do not stand still. Too often it is easy to be bounced into immediate (sub-optimal) responses when children press us for answers. Anticipating the coming challenge (perhaps bed-times, school choices, subject-choices, introduction of new partners) will help parents to manage those challenges as well as possible, and enable the child to make the best of their situation.

• Implications
  The focus on children can inform the approach taken to other parts of the separation process: how it is timed, how it is to be managed and indeed the outcome: for example, when an ongoing regular involvement is intended through the week, that will inform choices around [continuity at] school, [geographically-close] homes and [child-friendly] careers.

There is a considerable literature around the approaches that might be taken by parents focusing on making the situation work well for their children. And much will depend on the situation, in particular the ages of the children, but also their nature generally.

In addition if (hopefully if) parents do decide to separate, they know where to go for information and that information is clear about the need for them to put their child’s interests first and their own relationship issues second.

At present, the report says, the information available to parents is neither easily accessible nor always reliable and it can be difficult for them to know which information to trust. There needs to be clear, comprehensive and co-ordinated information about parental conflict. In the report, its authors recommend having one authoritative website called ‘The Separated Families Hub’.

Let’s now look at the stage that is likely to come up first upon making the decision to separate: informing.

Informing

• Plan – both together

Ideally both parents will talk to the children together. That will mean planning and agreeing what is going to be said. Usually, keeping it smaller and simpler is better than to avoid straying into difficult territory. Indeed small and simple may be all that the children will be able to hear at the first stage anyway.

Each parent will want to reflect on whether they are able to do their part and whether they will be able to manage their feelings.

• Fault = no! Honesty= yes

We think that our children may want to know the back story about why this is happening, they absolutely do not and it is a topic better kept well away from and not just at this initial stage but generally.

They may well need to know that you have tried to keep things going but that it has not been possible and you are truly regretful about that. They should be reassured that the separation is not about them and that it is not their responsibility. And what you tell them has to be honest: now more than ever they need to know that they can depend on you.

• Changes

Children will usually want to know a whole range of things and things that may not yet be decided. It is ok to say that you do not yet know and that things are likely to be a bit messy for a while but that you, as parents, will be doing the best you can to provide for the best possible and that you will keep them informed along the way.

• Care, love and support

Ideally this is the main message that the children will come away with: that mum and dad’s love for them is unaffected, that they will each always be there to support them and each care for them.

• Follow up

The shock of the news (even where expected) may generate a flow of questions from some children and mute horror in others. Tell them that asking questions to each or both of you later on is fine. These children may circle back to the question time and again.

• Sticking to it

Needless to say, sticking to what you have promised/committed to is crucial.

• Make it real

Sometimes separation will follow soon after and for others separation is not possible for many months. Children can be confused if the conversation happens and then nothing changes, at least separate bedrooms will be usual and often separating out into different homes will help, in particular where it can be managed well.

We do not come to parenthood hard-wired to know how to get our children through separation well. Finding and acting on the advice can reassure you that you have done the best you can and this may be the most important thing you can do.