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What Parents Need to Know When Separating

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A leading family law judge gave a clear warning this week that parents should not shirk their duty to ensure that their children maintain a relationship with both parents following separation. These comments were made by Lord Justice Macfarlane in the Court of Appeal upon a father's successful request to overturn an order preventing him from seeing his two young children. The father, who had not seen them for three years, had only been allowed contact once a month via letters, cards and gifts, after the mother said that she found the idea of substantial contact between the children and their father too distressing.

The unanimous judgment provided for a gradual re-introduction of contact between the children and their father and in an unusual step Lord Justice Macfarlane directed comments at all parents to make them aware of what was expected of them following separation and divorce. He said that where it is in the best interests of the child to spend time with the other parent, then the parent with care had a duty to ensure contact with the other parent took place, acknowledging that this may be "a very big ask." It is not acceptable, he said, to shirk that duty and it was the responsibility of the parents to deliver a good outcome for a child, rather than the courts.

These comments come in the wake of a consultation launched by the government proposing changes to the law on parenting following separation. Claiming that there are too many cases in which one parent has difficulty maintaining a strong relationship with their child, it has been proposed that key legislation includes a statement confirming the expectation that both parents are jointly responsible for their children's upbringing. While Lord Justice Macfarlane did not make any direct reference to this consultation, his comments are a reminder that this expectation is already enshrined within the law and that the courts will expect parents to do what they can to maintain that relationship.

While there is not a direct statement of intent in the law to this effect, which is a change which the government are seeking, most parents will have what is called Parental Responsibility. This is defined as all the rights, duties, powers, responsibilities and authority that a parent has in relation to their child, including the power to make major decisions in relation to their schooling, health and religion. Mothers will automatically have Parental Responsibility, as will fathers if they were married to the mother at the time of the child's birth or have been registered on the birth certificate after 1st December 2003. Even where this is not the case it may be possible for fathers, and others, to obtain Parental Responsibility by agreement or by court order.

As the judge commented, not all of the responsibilities of the parents to meet their children's needs will be easy or pleasurable. The courts have consistently decided that in all but exceptional circumstances, children need to maintain a good and significant relationship with both parents. It may not always be easy for parents to work together to ensure that, but an inability to communicate will mean that their children inevitably suffer, which will also have ramifications both for the child's relationship with both parents, particularly when older, and the children's general well-being.

So how can parents ensure that they meet that responsibility, when that may be the last thing they feel like doing? Maintaining consistent and open communication is key, and many parents are able to retain an amicable relationship where the arrangements for their children are concerned. That is not always easy or possible, but other resources are there to assist parents in avoiding lengthy and expensive court battles. Mediation or collaborative law are both processes in which trained mediators or lawyers can guide parents towards resolving any dispute, and arrangements that are reached by agreement, rather than those imposed by a judge, are more likely to last. There are also an increasing number of avenues of support, from parenting workshops (which help parents maintain and manage their relationship following their separation) to family therapy.

It is important that parents access what support they need at what can be an extremely difficult time so that, as Lord Justice Macfarlane said, "they can more readily engage with the difficulties that arise when contemplating post-separation contact". This decision sends a clear message that refusal to do so is not a sustainable option and that in all but the most serious cases, parents need to work together for the best interests of their children.

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