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Christmas 2020

As Christmas approaches with the added uncertainties of extra restrictions and the world in chaos, we are very aware of what a difficult time this can be for separated families.

This year will be a little different than other years and separated parents may well be feeling more of a sense of isolation than they have in other years.  With less ability to meet up with friends and family, feelings around not having the children, will be heightened this year.  Clients that we work with us in mediation describe the feelings of loss of not being together with children and as a family.  If this is your first Christmas apart, focus on the fact that it is the last time, that it will be the first time – next year will feel a little easier.  It can be useful to plan some nice things to do, this year Zoom meet ups, walks in the park or country side, a list of films you have been meaning to see, planning and cooking a new recipe….

Planning is key with regards arrangements for the children across the Christmas holidays.  If you can sit down with your ex, or pick the phone up and have a discussion around what would work best for the children and the two of you in this period, then this would be ideal.  In mediation we help clients around communication and usefulness of aiming for a polite business like style of interacting.  Rather than dictating to each other, invite suggestions, negotiate and try to keep emotional language out.  Try and focus on each having quality down time with the kids, children often express preferring this as oppose to carving up the important days and feeling hurried or travelling back and forth.  What will work for each family will be different and need discussion. Children of all ages welcome the idea of two Christmases and for younger children, that Father Christmas visits children who have two homes, twice!

Clients in mediation work together in organizing the Christmas and New Year period and they all do different things.  Common for separated couples is the idea of alternating Christmas and New Year on a year by year basis.  Or, switching Christmas eve and Christmas Day one year, for Boxing Day and some time after, the following year.  What is key in all of this, is the way in which the two of you work together in organizing a set of arrangements that work for you and the children.  If you are both on board and sharing positive messages with the children, then they will have a great time and feel free to relax and enjoy this time with each of you.

The giving of presents can be another area that can cause issues to arise.  The first year apart, some couples choose to meet on Christmas morning and share in the purchasing and opening of presents with children.  Whilst this is an understandable desire, it is important to be mindful of your ability to be amicable and make this a positive experience for the children.  If you are wishing to buy joint presents, then this needs discussion and planning. If you are buying your own presents then it can be useful to let the other know what you are planning to get and again to work together around this.  A ten year old I saw in mediation some time ago, shortly after Christmas, had been bought the same longed for present by both parents.  They had fallen out heavily about this and he had witnessed their anger towards each other.  His words, “I wish I hadn’t got any presents at all this year – I haven’t even looked at them”.

We as mediators do recognise the emotional and stressful time that Christmas can bring for parents and children with two homes. Make sure you take time for yourselves and work together as best you can to prioritise making the time you each have with the children, as stress free and relaxed as possible.  Children won’t remember how many days or hours they spent where, or who got them which present – they will focus on close family time with each of you.

We know it takes bravery and courage to co-parent positively and we also know that your children will thrive because of this.

Here’s to a happy and healthy 2021.

Jane Kerr

Accredited Family Mediator and Child Inclusive Consultant

Wells Family Mediation

First published in The Times

12 November 2020

Helen Adam, Charlotte Bradley 

We need to move away from legal disputes for separating families to help to build better relationships and cause less harm.

Society’s approach to divorce and separation has to change.

The family court is stretched beyond its limits by vast numbers of separating parents who disagree about the care of their children. More significantly, our adversarial legal system is a blunt instrument for families going through vulnerable periods in their lives.

A report published today by the Family Solutions Group calls for a rethink. The group was set up in January by Mr Justice Cobb with a remit to consider the needs of separating families before they turn to court. It argues that family law issues — particularly those involving children — must be approached differently from other legal disputes.

First, a legal response to parental disagreements over their children is inappropriate for many, and actively harmful for some. Many disputes about children flow from unresolved emotions caused by the circumstances of relationship’s breakdown. These are relationship issues rather than legal matters. The report suggests a move towards a child-centred, relational approach.

Second, research is clear that parental conflict harms children, affecting their long-term mental health and future life prospects.

Too many children are silent victims of our legal system, with childhoods lived against a backdrop of family conflict. In the vast majority of cases children have no voice in the process.

Today’s report calls on the government to establish a family minister to co-ordinate policy and provision for separating families, beyond the administration of justice.

It advocates public education to reframe our cultural response to family breakdown away from an adversarial legal environment towards a child-centred, relational approach.

Too many parents who separate on difficult terms expect to fight over their competing “rights”, rather than co-operate over their shared responsibilities.

Too many children are silent victims of our legal system. And the report recommends a range of other reforms, including improved information and support for children, with those deemed old enough being consulted on decisions that will affect them.

The report calls for early triaging with parents to assess needs and direct them either to a “safety pathway” for vulnerable families who need access to the family court, or to a co- operative parenting route away from court to promote a long- term parenting relationship. This is not easy for many separating parents. Hence the further recommendation that parents access a holistic range of support from therapists and mediators alongside legal services to help them to resolve issues together.

Compulsory training for all those who practise family law is crucial because it will raise awareness of the psychological implications of separation on parents and children, and the risk of harm that parental conflict has on children.

The report’s recommendations also call for the code of conduct of Resolution, a family law organisation, to be applied by all legal practitioners. All lawyers must acknowledge the impact our conduct has on separating families. At the end of a case, how often do we consider the state in which we leave the parenting relationship and whether parents will manage co-operative parenting in the future?

Today’s report is ambitious — but significant change is needed to give better results for families.

Helen Adam, a mediator and former solicitor at Wells Family Mediation, chaired the committee that produced today’s report; Charlotte Bradley, the head of family law at Kingsley Napley, was a member of the committee

The Family Solutions Group

The Family Solutions Group is a sub-group of the Private Law Working Group. It is a multi-disciplinary group with broad and deep expertise in working with separated families in and out of court. We have been tasked with bringing fresh and focused attention to improving the experiences of separating families away from the Family Court where it is safe to do so.

The issue

Every year, around 280,000 children see their parents separate in the UK. How those separations are handled will affect the rest of their lives. The current system is failing many children and their parents, and this affects society as a whole. The financial cost to the tax payer of family failure is now £51bn up from £37bn pa 10 years ago.

The context

When parents separate, the reflex action for many is to frame parenting disagreements as legal disputes. If you have a toothache you go to the dentist; if you have an issue following separation you go to court. Too many parents who separate on difficult terms expect to fight over their competing ‘rights’, rather than cooperate over their shared ‘responsibilities’.

Family breakdown is painful. When people are anxious and / or angry they are extremely vulnerable to manipulation. They need support and an approach that focusses their energy into putting their children above their own hurt feelings; an approach that steers them away from the courts.

We need to shift what are seen as ‘custody battles’ into long term goals of cooperative parenting. Unless there are safety concerns a child should be able to enjoy a close and loving relationship with both parents; one parent does not have the right to stop or sabotage that.

A ‘justice system’ response to parenting disagreements is a blunt instrument for a family going through family breakdown. If all you have is a hammer everything looks like a nail. Some families need the protection of the family court, but many do not. Disagreements about children may be symptoms of unresolved emotions following relationship breakdown, and yet relational issues are not addressed in a system designed to administer justice. In practice, the adversarial nature of a justice system may only add fuel to the fire, increasing stress and conflict within the family.

Many issues currently being taken to court are not legal disputes; in fact the traditional legal response is unhelpful maybe even harmful for many families. The system is designed to focus on the differences between parents not what they have in common. Sir Andrew McFarlane President of the Family Division has said “court is not the right setting for many. It provides a pitch and a referee for parents to play out further rounds in their adult contest”.

We know that conflict can be highly addictive. Some parents are frequent returners to court relying on the state as a third parent. The courts’ precious resources should not be used to determine which platform at Clapham Junction (T v S) or which junction on the M4 (Re B) a child is handed from one parent to another. These children deserve better.

Things have to change. As a society, we must protect children and restore their needs and rights as central in any disagreement between parents.

Key recommendations from our report:

• A policy response.  There are thirteen separate government departments responsible for families, children and family breakdown. We are proposing a more coordinated, joined-up approach across government departments to tackle the financial and human cost of family breakdown.
• Change the cultural response to separation.  Separating parents need to be steered away from acrimonious court proceedings. We are recommending a campaign of public information and education with the aim of achieving a permanent shift in cultural attitudes. For example attendance at a kite-marked Parenting Programme should become the norm as it is in other jurisdictions.
• Put the rights and needs of children at the centre of any parental separation. All the evidence points to the detrimental effect of acrimonious court proceedings on children, often for many years to come. Research is clear that psychological harm caused by parental conflict impacts children’s long-term mental health and future life chances. Children become silent victims as their voices are drowned out in the adult conflict and childhoods are lived against a backdrop of parental conflict, often continuing for years after any legal process is completed. We propose a presumption that children age 10 and above should have the opportunity to have their voices heard.
• Steer some parents to the ‘safety pathway’. There is no doubt that some families need assistance from the family courts: for example where abuse is alleged or there is the potential for harm (perhaps because of addiction or severe mental health issues). We estimate that 20-24% of families fall into these categories and in such cases safety must be prioritised above all else. We are recommending that such cases are identified early and directed onto what we have called the ‘safety pathway’. This will give them accessible and affordable support, and access to representation in court where needed.
• Steer others to the ‘cooperative parenting pathway’. For the remainder, we need to reframe the conversation so that a legal response is not the default option. In the absence of safety concerns, the goal must be to support parents to resolve issues in a child-focused way themselves. These families require a ‘cooperative parenting pathway’, which presumes that parental involvement, almost always in the form of contact with both parents, is beneficial to a child. Separation can be a distressing process, and we cannot ignore the hurt and often anger that some parents feel at this time. However, we are calling for a system which holistically assesses the needs of families and offers clear routes to integrated support and therapeutic services, funded (where financially eligible), and in which the voices of children are central. This will require better coordination of support both locally and nationally. Ultimately, parents and their children deserve a more humane response to relationship breakdown.
• Family law professionals and the interface with the family court. There must be a greater understanding within the legal profession about the effects of parental conflict on children and relationship dynamics generally; mandatory core training is proposed.  Notwithstanding an increasingly sophisticated range of non-court resolution processes parents and their lawyers continue to cling to the court.  The court must now discharge its duties under Part 3 of the Family Procedure Rules. A proposed new Part 3 Protocol with ‘teeth’ will assist the court to encourage and facilitate out of court processes by ordering a case into an out of court process and in some cases refusing to hear the matter. Further sanctions would include costs orders against parties and their lawyers for unreasonably refusing to consider or engage in an out of court process such as mediation.

To view the full report by The Family Solutions Group (subgroup of The Private Law Working Group (PrLWG), please see What about me? Reframing Support for Families following Parental Separation

On 18th November 2020, a Webinar was conducted where members of the committee highlighted FSG’s recommendations and initiated a discussion with the attendees around the recommendations and the way forward. The panel included:

• The Rt Hon Sir Andrew McFarlane, President of the Family Division
• The Hon Mr Justice Cobb (and chair of the Private Law Working Group)
• Helen Adam, chair of Family Solutions Group, mediator and former solicitor
• Dr Jan Ewing, Law School, University of Exeter
• Patrick Myers, Reducing Parental Conflict Programme,
• DWP Charlotte Bradley, Head of Family & Divorce at Kingsley Napley

Family Solutions Group: Webinar 18th November 2020

The English courts now expect all families to attempt mediation before starting legal proceedings in relation to finances and children on divorce (unless there are good reasons otherwise). Mediation gives people a safe place to resolve their differences at their own pace and to reach decisions with the help of an impartial third party. However, regardless of whether court proceedings are on the cards, mediation is an extremely flexible model that can be used at any time.

When couples separate, there may be issues to be decided about children, parenting, or finances. Often one person might receive a telephone call or letter from the other person’s solicitor and believe that that their only option is to instruct solicitors or go to court.  Mediation is in fact an alternative at any stage in the legal process. It gives couples the chance to speak to each other directly and explain their concerns and needs in the presence of a professional. Not only can mediation save people thousands of pounds in legal costs, it can also be an empowering process as the clients take responsibility for the decisions that are reached. It is never too late to mediate throughout the separation process, even when court proceedings are underway.

Even years after separation, mediation can be helpful if unexpected problems arise. For example, people may return to mediation if their circumstances change substantially following their original divorce settlement. Going back to court to vary a financial order can be expensive and carry risks. Judges have a considerable level of discretion and predicting the outcome of court proceedings is difficult. Mediation allows parties to retain greater control. It can provide people with a calm and safe environment in which to negotiate freely without decisions being forced upon them. Furthermore, there is nothing to prevent people from going to Court if the mediation breaks down. Mediation is a confidential process and it can offer people the opportunity to be open and creative in reaching solutions without the worry that the information might be used against them at a later stage, in court or otherwise.

Perhaps most importantly, it is never too late to mediate over children matters. All mediation at Wells Family Mediation is child-focused, so the welfare of any children will be the most important consideration in any discussion. Research has shown that it is important for children to have parents who can communicate and continue the job of co-parenting following separation. Mediation encourages people people to lay aside conflict and separate their emotional relationship from their parenting relationship. It is normal for people to experience difficulties in making this transition and mediation can provide people with a safe space to discuss difficult issues. It can also be helpful to return to mediation to revisit parenting agreements and consider how they have worked and if any changes need to be made.  We therefore encourage anyone to return to mediation at any stage if they wish to discuss any children or parenting issues, even years after they separate.

Mediation is not about enforcing ‘rights’ or vindicating the other person – it is about having a practical conversation that is future-focused, child-focused and reality-based. It is never too late to work together to find solutions to problems that will ultimately benefit both clients, their children and their extended families for many years to come.

I want to relocate –  what can family mediation do?

When one parent decides to relocate and there are children involved this can be a painful, unsettling and challenging time for a separated couple.  Whether the proposed move is internal (in the UK), or external (abroad), there will undoubtedly be a big impact on day to day family life and the current arrangements for the children.  This can naturally lead to difficult discussions and conflict between parents.

Many relocation cases end up in court with one or other parent looking for an order under The Children Act 1989, either a Specific Issues Order (to allow them to relocate), or a Prohibited Steps Order (asking that the move not be allowed). What we know from judges, is that they recognise relocation cases as amongst the most difficult and painful that they deal with.  The court is focused on the welfare of the child and will take a holistic and global evaluation of the proposals which the parents are making, alongside the wishes of the child or children.  This is a complicated process for judges who have to balance conflicting wishes of the parents against a raft of other considerations around for example; finance, education, housing, support networks, the impact on the mental health of both parents if the move does or does not go ahead.  It is recognised that the outcomes from court can seem varied and arbitrary for parents and often do not include detail of how the arrangements will look after relocation.  Further, coming out of a lengthy court process it can be extremely difficult to move ahead with a decision which has been made for you, focusing on a positive co-parenting relationship going forward.

Following a Mediation Information and Assessment meeting (MIAM), if mediation is deemed suitable and is a process which parents are open to trying, then this can offer a positive alternative to court.  During the process the mediator will hear separately from each parent and then in joint sessions, they will have a safe space in which to begin to explore some of the painful choices and practical considerations which will arise if a relocation were to go ahead.  Mediators can link families up with therapeutic support if this would be useful for the two of them or their children during this tough time.  They will also explore the reality of how things will look if a relocation does or doesn’t go ahead and they will encourage the person who isn’t locating to think in an open way of how things might feel and any ideas which they may have but perhaps have been afraid to share, with communication at a low point.

At Wells Family Mediation we have dealt successfully with many relocation cases. Although challenging and emotional, we recognise how the work parents do in mediation can help each of them feel more included and invested in the eventual choice which is made about where parents are to live.  In certain cases, we can include children as part of the process through Direct Child Consultation.  In mediation, families are able to retain control over the decision making. Mediators help them to tailor their arrangements to suit their situation, working through the realities and practicalities of these, in a way that the court doesn’t have the resources or capacity for.  Most importantly, we see that mediation has helped support and protect the co-parenting relationship between parents, at a difficult and painful moment in their lives, which we know is crucial in offering their children the best opportunity to thrive now and in the future.

The mediators at Wells Family Mediation explain the mediation process and how it can help families through different circumstances.

Nikki Brauer from WFM discusses the benefits of hearing the children’s voices in mediation. Video produced by Fegans and WFM.

When you separate, one of the biggest decisions to make is where your children will live and how much time they will spend with each parent. There are no set ‘rules’ about child arrangements on separation. The law no longer talks about ‘custody,’ ‘access,’ or ‘primary carers’ – it simply states that parents have joint and equal ‘responsibility’ to meet their children’s needs. The family courts presume that parents know what is best for their children and leave them to make whatever arrangements they like.

Of course, sorting out the practicalities can be difficult in the initial stages of relationship breakdown when emotions are running high. It is important to get the help you need to resolve things in such a way that your children will experience successful ‘shared’ co-parenting.The way in which issues are dealt with following a relationship breakdown will have a large impact on the parenting relationship for the future. The research is clear that children are affected by parental conflict and ‘split-parenting’ following separation.

You may wish to use a ‘parenting plan’ to help you to make joint decisions about contact and other specific issues upon separation, such as how you will communicate with each other moving forwards, and how you will work together to make decisions about school, bedtimes, homework, medical treatment, behaviour, course selections, careers advice etc.

If you cannot agree initial arrangements between you, or if something arises at a later stage, then mediation can help resolve disagreements with the guidance of a trained impartial professional. Mediation is not legal advice nor is it counselling. A mediator will listen to each person’s point of view and help you to work towards what is best for the children. The aim in mediation is to support parents to make the transition from parents who live together to parents who live apart but who have a successful ‘shared parenting’ relationship, even if you hold different views at the start.  Mediation is available at any stage, with couples returning years after separation to discuss a specific issues such as; changes to weekly arrangements, schooling, or university costs.

If you cannot agree the arrangements between you then you may need to use a solicitor or the court, but these options should be seen as a last resort. Children from separated families thrive when they have close relationships with both parents – and when parents can communicate and work together to agree what is best.