It is alarming that in 2014, some 15 years after the Children Act was passed, and having recently seen the Children and Families Bill made law, that there are lawyers who are still talking to people about custody. It’s bad enough the term is still widely used on television and in the media, but lawyers should know better. Even if they don’t use the term they are talking in terms of one parent being in control of the child’s life or wielding the greater power, or other words where the effect is the same. Surely this isn’t still happening I hear you ask. I’m afraid it is because I have recently been given an example of this very thing happening.
Picture the scene: a mother walks into a solicitor’s room. Her marriage is breaking down and whilst she is sad she knows that it has come to an end. What she is thinking about now is what happens next? How do they go from living as a family of 3 (or 4 or 5) in one house to living in separate places. How can this be done? How can they make the arrangements? What do they need to think about? They have a child or children that need to be cared for – how will that work? The solicitor then explains that as a primary carer she should have the children living with her. She will need a house to make sure they are housed. She should get what she needs. It’s just what she wants to hear. I will be OK. The law will be on my side. Where is the talk of collaboration? Of working together to find a solution that benefits everyone? Where is the talk of making arrangements that benefit children, of making sure they are safe, well and reassured that they are still loved by both parents?
I also have to ask what even is a primary carer these days? In circumstances where both parents work full time (or something approximating full time) and one drops the children at school, or nursery, and the other picks them up why is one role supposedly more important than the other? One parent takes the child to the doctors this week, the other takes them to the dentist the following week. One parent is drawn into a last minute meeting so the other parent quickly makes arrangements to leave work and pick up the children. Isn’t this just parenting?
Telling someone in the midst of a separation that they somehow have more say than the other parent is like giving a teenager who has just passed their driving test a formula one car. It is something their heart may desire but they may well struggle to use this hugely powerful tool wisely and it will more than likely end in disaster. Any separating parent should be encouraged to work with the other parent to jointly parent their children and to ensure that the children get to spend time with both parents and are reassured that they are loved and that they have done nothing wrong. They may not still be in a relationship with each other for their own benefit but they will continue to be in a relationship as parents for often years to come. There are great difficulties in each parent deciding to parent their children separately rather than in conjunction with the other parent. How can there possibly be similar rules, boundaries and expectations in 2 houses if the parents aren’t working together?
If solicitors cannot offer this simple but essential advice to their clients then there is a great risk that the separating parent will embark upon a destructive and unhelpful course. Solicitors are still often the first port of call for a separating parent and it’s vital that the advice they get is sensible, constructive, practical and that it will equip them to properly take their next steps. The advice and information given by family law practitioners can have a direct impact on what happens to a child and their experience of divorce. It’s a huge responsibility. We all need to understand it and take it seriously. All the MIAMS and other meetings exploring options will count for nothing if one parent already believes that right is on their side and they can make unilateral decisions about their children’s future. And what will that child or children’s future look like if one parent acts in that way, and believes they are entirely right to do so?