Children & divorce: where do we go from here? By Stephen Hopwood & Andrea Essen.

A survey of children’s experiences of divorce was published today. The Children Act 1989, which transformed the face of family law for children, is 20 years old today. So how have children’s experiences changed – and how can we make it easier for children to cope with divorce?

The Children Act emphasised the responsibilities of parents and adults. It created the concept of parental responsibility and set out in law the child welfare checklist for public and private law proceedings. It moved the focus from the parent’s rights to the rights of the child. Even the language was designed to empower children:

• A parent does not have custody of a child. Instead, the child resides with a parent.
• A parent does not have access to a child. Instead, the child has contact with an adult.

Most importantly of all the Children Act recognised that within families, even when there are two households, it is better that there is an agreement rather than an order where possible.  In short: if it doesn’t need an order, don’t make one.  If it isn’t broken, don’t fix it. Unfortunately without an order there can be no enforcement. Frequently this means that one parent dictates contact arrangements to the other or simply disregards agreements when it suits them to do so.

The Children Act promoted mediation through CAFCASS, agreement over orders imposed and most of all looked at what the child wanted and needed.  Wishes and Feelings Reports came into the consciousness of the court and solicitors.  People asked children how they felt and told the court – and the court listened.

That was 20 years ago; where are we now?

Well, the unpalatable truth remains that although the Children Act is the best fix for a difficult situation, it will never be as effective as an agreement made by parents who work together for their children. What is more, a recent survey of 4,000 parents and children makes for grim reading. Seventy per cent of parents quizzed cited the child’s welfare as the main priority during separation. However:

• Nineteen per cent of children reported that they felt used, 38 per cent felt isolated and 37 per cent felt alone.
• For 38 per cent of children, the separation meant they never saw their fathers again.
• Many admitted that they had turned to drink and drugs, played truant from school or self harmed.
• Fifty per cent of parents admitted putting their children through an intrusive court process to ascertain access issues and living arrangements.
• Twenty-five per cent of parents surveyed believe that their child was so traumatised by the separation that they self harmed or contemplated suicide.
• Twenty per cent of separated parents admitted that they actively set out to make their partners experience “as unpleasant as possible”, regardless of the effect this had on their children’s feelings.

The Children Act cannot be described as an unqualified success. Then again, very little ever is.  Certainly it is better than what went before, and encompasses high ideals and fine principles.  In reality, things do go wrong and the 20^th anniversary provides a prompt for practitioners to review the law.

After all, for every benefit there is a flip side:

Advantage

The court is able to consider the wishes and feelings of children to assist in making their decisions

Disadvantage

CAFCASS is overburdened (see Jennifer Hollyer’s recent post on problems with CAFCASS).

Advantage

The no order principle discourages court orders being imposed

Disadvantage

Uncertainty and lack of enforcement if one parent breaks the agreement

Advantage

Focus on mediation

Disadvantage

The trauma of court involvement

What is the answer? Should we go back and try again?  Should we amend the current law to patch over these holes?  Is it simply a case of throwing more money at the courts to assist with CAFCASS shortages and court pressures?  Or is what we have the best that we are going to get?

To be honest it may well be the best of a bad lot.  The court system has its flaws.  It certainly isn’t perfect and watching parents duke it out will never leave a pleasant aftertaste.

However the alternative is even less palatable.  If parents can’t agree, surely it is better to impose a decision from on high than to leave the situation unresolved and the children in limbo with no contact with one parent?  If there are constant squabbles between adults then perhaps it is better to avoid the discussions at all.

Mediation is a comfortable middle ground but realistically there will always be people who cannot agree, even with outside assistance.  Ultimately the court is the destination of last resort.  Perhaps the way forward is to discourage issuing until everything else is exhausted. Even that is not ideal, because an unscrupulous adult can choose to delay and drag on mediation and discussions until the children barely remember what their other parent looks like.

Happy birthday to the Children Act 1989: an act of ideals in an imperfect world.

Stephen Hopwood is a child law specialist and Head of the Children’s Department at Stowe Family Law.  He has been involved in aspects of child law for over ten years and has particularly advanced the concept and practice of joint residence. He has also been involved with cases with complex foreign elements, and specialises in cases that have become “bogged down” or “written off”.