There has been a noticeable rise in the number of court cases involving children caught up in divorce and separation. They are now so prevalent that law firms such as Benussi & Co – which historically have had few cases where the care of the children is an issue – now have large numbers of Children Act matters.
Because the courts are inundated with litigants in person (individuals not represented by a solicitor or barrister, but with the right to address the court in person), the court processes are being slowed down. The requirement to consider mediation before issuing a court application seems to have done little to stem the flow.
Those who are suffering the most from this state of affairs are children. They are being tugged from one parent to another and the period of uncertainty in their lives is made much longer than is necessary.
We believe there are several reasons behind the high numbers of these cases. Firstly, the requirement for the court to consider the arrangements for children on divorce has been removed. This means that divorcing parents no longer have to complete a ‘statement of arrangements’ form alongside their divorce petition, so they don’t necessarily have to think about those arrangements before starting the formal process to end their marriage.
Now that there is extremely limited availability of legal aid in family cases, it has become more common for parents to issue applications themselves, often without the benefit of impartial legal advice at an early stage. I am regularly instructed to act in applications that have been issued by a litigant in person. Often by the time our advice is sought, the parents have already become polarised by the court proceedings and, as a result, we have had little choice but to pursue a case to a costly final hearing where a judge will impose a decision that suits neither parent nor child.
Another reason for the rise in these sorts of cases is a lack of funding for or knowledge of early intervention resources – a mediator can meet with the parties for 30 minutes, but no other intervention is required by the rules.
Perhaps the saddest reason of all is the objectifying of children so that they become just another asset of the marriage over which to litigate. In our materialistic society, where property and belongings hold such sway, sometimes people forget that their children are not items over which to haggle. The children who are being fought over are not consulted. They would ideally love their parents to stay together. They depend on their parents to co-operate in terms of providing stability, reassurance and love.
To avoid cases ending up in court, early advice from a specialist solicitor is imperative. That specialist can point to available services and impartially advise as to the current approach of the courts to children arrangements. He or she can also provide a timely reminder that as parents they once loved each other and have given each other the most precious of gifts, a viable child. They are best placed to know what is best for their children, so why would they let a judge – a stranger – decide on what should happen?
Court proceedings are rarely in children’s best interests.
* Georgina Burrows is a Senior Associate with Benussi & Co specialising in children cases