Often, when parents separate, there are young children involved, so it is important to set up a co-parenting model that can last for a significant period of time.
Many parents feel that the most appropriate forum for such discussions is within mediation. If you have been able to reach a decision through negotiation, you can then choose either to record your proposals informally or to have them drawn up into a Consent Order and lodged with the Court for approval by a Judge. But there may be cogent reasons for one or both parents preferring to use the Court process; for instance where there are safeguarding concerns raised (for example, if it is said that the child(ren) would be at risk of suffering harm in the care of the other parent due to physical, emotional or sexual abuse or due to parenting capacity being impaired).
Where safeguarding concerns are raised there are clear reasons for the matter to be dealt with at Court, and for the parties and the Court to receive input from CAFCASS (the Children and Family Court Advisory and Support Service). However, there are many other justifiable reasons why you may to prefer to use the Court process, even when no such concerns are raised.
In this article, I’m focusing on disputes that do not involve safeguarding issues, yet the parents have chosen to use the Court process. I aim to show you that being at Court does not preclude sensible negotiation, nor does it necessarily mean that you need to become more entrenched in your views. Whilst mediation can provide a strong platform for discussion about co-parenting, following the three tips below can also make the Court process more constructive for you.
- Ensure that discussions are positive and solution-focused:
There is a risk that discussions at Court focus on which parent is right and which parent is wrong. As a result, you both channel your energy and focus into disproving what you perceive is being said about you by the other parent, or into attempting to evidence how the other parent “does it all wrong”. If not checked, there is a risk that these attempts will become more important to you than listening and trying to resolve matters in a way that works for your whole family.
Be careful not to fall into this trap, which is likely to result in contested hearings and each of you having to give evidence ‘against’ the other before achieving a Court Order. Bear in mind that any Court Order will still require you to work flexibly and collaboratively with each other to ensure that your children can enjoy their time with each of you.
Mediation emphasises from the outset the importance of being able to mutualise problems and re-frame what is said. It aims to reassure you that you are not the only people to struggle with these issues, and the mediator ensures that you can each hear the positives that are invariably recognised by the other parent, rather than focusing all your attention on any negatives. There is nothing to prevent these techniques being used at Court, and in fact they may positively assist the process.
- DO listen to what the other parent is saying and ask questions, so you fully understand each other’s position.
- DO try not to become defensive, but instead set out your own proposals and make it clear that you are there to seek a resolution.
- DO frame your discussions within the overall context. For instance, recognise the good relationship that the other parent has with your child(ren) and re-iterate the wish to support that relationship, even although there might be disagreement about the precise days and times that the child(ren) should spend with them. This will reassure the other parent and allow them to focus their attention on the real issues.
- DO present the problem as a mutual one – how can we, the parents of these children, ensure that they can spend time with each of us and continue to enjoy their usual activities and family relationships?
- Retain the power to make the decisions where possible:
Whilst it’s true that in the Court arena a third party will make the decision if you are unable to agree; in reality both the court and mediation processes are trying to encourage you to work together for the benefit of your children. Both processes recognise that there is a hugely positive message sent to children when the adults in their lives are able to make decisions together and discuss matters constructively. They also acknowledge that an Order or agreement that is arrived at through negotiation is more likely to endure than one that is imposed upon you. Even if you are unable to agree all the issues it may be possible to narrow down any matters that need to be decided by the Judge.
- Utilise the resources available to you
The involvement of CAFCASS (the Children and Family Court Advisory and Support Service) in cases heard at Court can prove to be extremely helpful, and CAFCASS officers at Court do try to ensure that the parties have the opportunity to explore with them potential avenues of agreement. However, the pressures of time and lack of resources mean that there is not always time for the CAFCASS officers to facilitate an agreement, nor for a section 7 (of the Children Act 1989) report to be prepared.
Parenting Plans – available to download from the CAFCASS website – might prove to be a useful starting point for discussions between you both.
The Court can direct that you both attend a SPIP (Separated Parents Information Programme). Most parents who undertake this find it really useful, as they meet other parents experiencing the same type of problem and are able to brain-storm solutions as well as being assisted to focus on the welfare of the child(ren) rather than the adult disagreements.
Remember that it is possible at any stage to request an adjournment to attend a mediation session or a round-table meeting with your lawyers, as long as you both agree it would be appropriate. The Court is generally sympathetic to such requests and will try to accommodate the listing of future hearings in order to allow time for this to take place.
Bear in mind that, even after the conclusion of Court proceedings, the Court Order may require some agreements to be reached on a yearly basis (for example the periods that the child(ren) spend with each of you during the school holidays). Many parents choose to attend mediation to iron out any disputes that arise.
Resolution.org also provides helpful information on the “parenting after parting” website, including with issues such as ‘dealing with emotions’ and ‘supporting children’.
Different processes work for different families, and at particular times one process may be of more assistance to you than another. Underlying the different processes, however, are the common aims of ensuring that you are helped to reach a decision and that your children are adequately protected from any adult issues. Using the tips above should help to ensure that you work together constructively as parents in a way that ensures the best outcomes for your child(ren).
Many parents who once felt that the other parent’s differing parenting techniques and attitudes brought a healthy balance to the lives of their children come, through the lens of separation and upset, to view those same parenting skills as potentially harmful or problematic. For those parents, a powerful message is to be found in the ‘top tips for separating parents’ prepared by the Family Justice Council’s Young People’s Board (which can be accessed through the CAFCASS website). The young people involved urge their parents to remember that “It’s ok with me if my parents don’t do things exactly the same. You are both different and that’s alright with me.”