Emma Taylor, Partner & Mediator, discusses the approach to arrangements for children on separation.
Custody, residence, contact, child arrangements….. the terminology for sorting out where your children live and with whom they stay after separation has been ever evolving since the Children Act consolidated the approach in 1989. This Act is now over 30 years old, time has moved on and, since then, there have been some updates to reflect how much families have changed but, some would say, this is not necessarily enough. In 2014, the Children and Families Act was introduced and the older concept of custody, residence and contact were moved away from and the broad bracket of “child arrangements” was introduced with there being a presumption of shared care in the appropriate circumstances or, if not appropriate, whether there needs to be a “lives with” or “stays with” order.
Of course, children cannot always be split in half and, in actuality, there can still be shared care, with the parents having equal legal status and no party holding a trump card, without there being equal division of time between the parents. But how does this work in practice? What does it mean for you and your family? And, perhaps most importantly, when will the court depart from the shared care presumption?
If there is anything I have discovered since I entered family law in 2007, it is that every single family is unique. I have never dealt with two identical cases with the exact same approach being applied. Each family is special and should be treated as such. However, we work within an objective framework which has to be applied to all families and, therefore, results can vary. If there were a crystal ball with all the answers at the outset of a case, then it would make my job a lot easier and families feel reassured but the fact is, there is discretion and variance and each case needs to be taken on its own facts, step-by-step, so that an outcome that is in the child’s best interests can be obtained.
I have been asked in the past whether I act for fathers or mothers or whose side I take. The fact of the matter is that the children should be at the centre of every case and that is my approach for my clients, who are undeniably parents who care deeply for their children and want what is best for them. I am frequently challenged on the concept that the family courts treat mothers better than fathers but this is not the legal framework. The reason that this can apply in some cases is because, generally, the status quo of that family has been that the mother has spent more time at home with the children and disruption to children is not appealing to the family court. As I say, times are changing, the shared parental leave options available to families are being taken up more and more and, of course, this does not apply to same sex parents nor families where the mother is the breadwinner. I am fortunate to live and practice in an area where there is diversity and a thriving LGBTQ+ community and I get to see daily how the courts apply the principle of the best interests of the children to all family dynamics.
Whilst disruption to children is not appealing, it is undeniable that separation is disruption. The breakdown of a family and the arrangements for the children have to change to adapt to the new situation and this is something that, with the right communication, can be managed between the parents. The status quo is naturally disrupted upon separation and the other parent may not agree with how this should happen. It is fact that, in the vast majority of cases that get to court, the main reason is a breakdown in communication giving rise to an intractable dispute between the parents where they cannot get the other to see their point of view which they feel very strongly about.
So, where does that bring us to and what is the answer to who gets custody? Well, the answer is that it depends. It depends on you, your family and, most importantly, what is best for your children. Unfortunately, breakdown of relationships leads to conflict and what you think is best may not be the same as the other parent and it is here that lawyers and the courts may have to step in to try and establish what this really means in practice.
There are, however, many options now available for families in this changing landscape of family law before a case has to be adjudicated by a Judge. Alternative dispute resolution (ADR) is on the rise. Mediation, collaborative law, negotiation, therapeutic approaches should all be explored before litigation and the benefit of these approaches to reduce conflict in families is clear to see. I am both a lawyer and a mediator and see both sides of the coin and would promote exploring every approach before going to court. The court system is overloaded. COVID-19 has impacted it but it was struggling even before this. There is delay and costs to litigation and, whilst is inevitable in some cases, it is far easier to come to terms with your family being before the Court when you have explored all possibilities first and know that you have done all you can for your children.
If you would like more advice or have any questions on the points in this article or about your family specifically, please feel free to leave a comment below or contact me on firstname.lastname@example.org.