When a relationship ends, it is of course upsetting for the couple involved. If they have children however, the impact on them is also significant. Understandably, children can often feel that their life is being changed and decisions are being made which affect them, but that they have no control over.
A recent case: Mr D and Mrs D has drawn the attention of family law practitioners recently, as when the judge made the decision as to where and with whom the children were going to live, he took the unusual step of writing a letter to the children directly.
In this case, agreement could not be reached between the parents and so the judge had to decide whether the children were going to relocate to another part of the country, and what the arrangements for spending time with their parents would be.
That can be particularly difficult for children, as a decision is being imposed on them. In this case in fact the judge had made a decision which went against the stated wishes of the children. In order to help them understand what was going to happen and why the decision had been made, the judge penned a letter directly to the children.
This judge’s example serves as a reminder to parents and professionals alike, that it is always worth thinking about how children can be included and given some agency within discussions about separation, without involving them in a way that is too adult.
Involving children in the decision-making process
If parties are in Court proceedings, the judge must take into account the wishes and feelings of the children, in accordance with their age and maturity. The way these views are most often communicated is by the children talking to a Cafcass officer, a Court social worker who will prepare a report about what should happen and include the views of the children. This does not mean that what the children say will necessarily go, as can be seen in Mr D and Mrs D where the judge decided what was best for the children was not the same as what they wanted to do. However, it is important for the children to feel heard, particularly older children who will be more aware of what is going on.
There have been other ways that children have been able to be included in proceedings. With older children, there are some cases where it is appropriate for a child to write a letter to the judge setting out their views directly. In the occasional case, a judge has said they will speak to the child to help explain the decision. In more complex cases or whether there is a high level of conflict between the parents, it is possible to join the children to the case as a party. They can either be represented by a solicitor via a guardian who sets out what is in their best interests separate from the parents, or if they are old enough and wish to, they can instruct a solicitor directly. Again this does not mean what they want will necessarily be best, but it ensures their wishes and what is right for them is kept in the forefront.
All of the above are ways to involve children when the case is in proceedings. However where possible, avoiding Court can often be the best outcome for the children. If the parents are able to agree matters then that will generally mean they can co-parent more effectively from the start, which is important for the children. In those cases, it is still possible to consider the wishes of the children, without making them feel like they have to make decisions.
Child inclusive mediation
One possible way to allow children to have a view on this is child inclusive mediation. If you are going through mediation to help to agree to plan going forward, then you could consider involving your child. This does not mean that they sit in the room (or Zoom) with you and take part in the discussion. Instead, you will agree with the mediator the kind of issues that might come up. They will then talk to your child about the issues and get their views. These can then be fed back into your mediation sessions to help ensure you address things your child might be concerned about.
If you have managed to reach agreement without Court and without the input of professionals, you can still consider how to ensure your child feels heard.
Explaining to your children that you and their other parent are splitting up is never easy, but it is usually best handled jointly or in a manner agreed with the other parent.
In the conversations that follow, it is important not to just ask them who they want to live with, or other questions that could put emotional pressure on them. Instead, you could ask your child what they are worried about and work with your ex-partner to come up with joint responses to reassure them and help them feel they are being listened to.
How we can help
Our specialist divorce solicitors can advise you on all legal aspects of getting a divorce or separation, including the best ways to agree on arrangements for children.
If you would like to discuss any of the topics discussed in this briefing, please contact a member of the team (Holborn office 020 3826 7526; Kingston office 020 3826 7527 or Putney office 020 3826 7520) or complete our enquiry form.