UK Family Law Reform

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Making a clean break

Divorce, which reaches its annual peak this week, should not be treated as a purely legal matter, especially when children are involved

Beginning with manic Monday, this is the busiest week of the year for divorce lawyers, as marriages get chucked out with the Christmas tree. Affairs, abuse and boredom could see as many as 1.8 million couples consider splitting up, their partnership further tested by two weeks of family holiday confinement.

David Bedlow of, that advises couples online, is quoted in yesterday's Guardian saying, "people are quicker to throw in the towel on a bad marriage - the trend is to move on as soon as you know it's truly over, rather than clinging to the wreck of a bad relationship for another year."

Knowing when it's "truly over" is trickier than it looks. In The Case for Marriage, Americans Linda J Waite and Maggie Gallagher (Doubleday 2000), quote from the American National Survey of Families and Households in which 86% of unhappily married couples who "stuck it out" found that five years later their marriages were "happier". Only 15% of those who initially said they were unhappily married continued to say their marriages were very unhappy.

Moving too fast to opt out is one issue - involving lawyers is another. In the UK, the business of divorce and post-separation is too often desperately badly handled, especially once children are involved.

The divorce rate has dipped, in part because the rate of marriage has dropped. Still, including cohabitation breakdown, between 150,000-200,000 relationships involving children come apart at the seams annually - many of those sons and daughters will subsequently lose touch with a parent, often the father.

Over the past few years, ministers have allowed civil servants to make a mess of improving the contact and access arrangements for the separated parent.

Children do better when a couple handle a separation as harmoniously as possible. Children say, in survey after survey, when violence and abuse are not a factor, that they want to keep both parents in their lives - so long as the two are not at war.

In the 1980s, in Florida, a system of "therapeutic justice" was established on the basis that the child's interests come first - and the law should do no harm. In the UK, the law is toxic in those instances when it shamefully fails to ensure that one parent permits the other, regular and extended periods of contact with their child or children.

In Florida, a parent knows that unless there is abuse, the courts will grant a non-resident parent access at least every other weekend and one evening a week. In addition, parents have to attend mediation and parenting classes - not to teach them how to parent, but to give guidance on how to navigate the rapids of living in a post-separation family (new partner; new baby; teenage child not wanting to spend their weekends with a parent and away from friends, et al).

A parent who refuses to comply with a contact order is jailed, a penalty imposed rarely. Using a child as part of the weaponry of failed matrimony is not accepted. Five years ago, in the UK, an organisation called New Approaches to Contact, composed of fathers, academics, lawyers and others, supported by Justice Bracewell, an esteemed senior family court judge, drew up a pilot project that incorporated much of the Florida model.

"It would be incomprehensible if the pilot project did not receive official sanction," Bracewell wrote. "It should produce much better outcomes for parents and children."

Not that inconceivable. The project was dumped and replaced by a pilot, devised by civil servants, in which the vital element of compulsory mediation for couples was omitted. The pilot was an embarrassing failure for government and a huge opportunity to improve the welfare of the children of divorced and separated parents was lost, strangled by red tape.

In the last couple of years, a new pressure group from across the political spectrum, that includes the Fatherhood institute and a number of other charities and lobby groups including Relate, the Centre for Separated Families and Barnardos, have been again been lobbying for change.

The recently launched 10-year Children's Plan has promised to find better ways, "to enable children to maintain regular contact with both parents if they part." Another opportunity for action is the reform of the Child Support Agency. A model that works already exists in Australia.

By the end of this year, the country will have 68 family relationship centres across the country, backed by a family relationship advice line.

The aim of legislation, information and advice is to encourage parents to resolve disputes before they go to court over contact. Under the Australian Family Law Act 2006, it is understood that the child benefits from having meaningful relationships with both parents - and the child must feel safe, protected from either witnessing or having inflicted on him or her any form of violence or abuse. The views of the parent, grandparents and others as well as the parents are taken into account when drawing up a workable parenting plan.

Regular contact is the norm, as is the involvement of the non-resident parent in the child's life (almost half non-resident parents, mostly fathers, in this country, are not informed by schools, for instance, of their child's progress, events etc).

Mediation, "family conflict resolution", is compulsory before a parent can go to court. Failure to comply with a parenting order brings an escalating tariff, beginning with giving compensatory time with the child to the other parent and ending in prison.

The Australian Child Support Agency and every branch of family support sings to the same song sheet - namely that it's in the interests of the child to continue to be part of a family, even after the parents split and that means regular contact and relative harmony between the adults.

If maintenance is a problem; if financing visits or travel costs are difficult for an unemployed dad or mum; if anger and a desire for revenge intrude; if depression and grief inevitably have a powerful hold there are support groups, one to one advice and a mass of material to help the mother and, crucially, the father, come to terms with what has happened and cope in a practical way (much of it offered by the Australian CSA).

The language reflects the humane non-legalistic approach. "Residence", for instance, has been replaced with "spend time with". The Australian overhaul acknowledges that a divorce well handled can have the minimum long-term impact on a child. Treated as a bun feast for lawyers, and an open sore by parents, it may inflict wounds on their offspring for decades.

In the UK still, with the exception of those solicitors who strongly advocate mediation, divorce and separation is treated as a legal matter: the more rooted it becomes in the courts, the more misery it heaps on the child.

A holistic approach with clear-cut rules, rewards and punishments in which the child genuinely comes first and adults act as grown ups is an ideal - but it's not a bad ideal for which to aim. So why won't the government do what it should have done several years ago, preventing the sadness of several hundred thousand children in the process?

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