Putting Children First 22nd, January , 2020

Putting Children First

The Scottish Government are currently consulting on updating the law relating to the welfare of children. The last major legislation was 1995 and there is a feeling  that the law should be updated to reflect ongoing changes in society.

It is essential that there are clear-cut rules based on what is in the best interest of each child to ensure that if parents are unable to agree on arrangements for their children, then there can be consistency in judicial involvement.

In fact, in most cases where parents separate the courts, are not involved. Although it is difficult, the vast majority of parents would prefer to make their own decisions about future arrangements relating to the children following separation.

The courts are regarded as a last resort where negotiation between parents have failed  often in circumstances where the parents can no longer communicate with each other  or where there has been threatening behaviour by one parent of the other.

More often now in situations where there is no agreement  parents will look to other forms of dispute resolution to try and sort matters out.

The Courts should have a role in encouraging this.

Mediation is a consensual process where the parents agree to discuss what is best for the children in the presence of an experienced third-party whose role is to facilitate discussions between the parties, provide information to assist the parents, discuss matters with them impartially, but not to make any decisions on their behalf. The decisions are made by the parents themselves.

Even before separation (or divorce) occurs when families are still living together , albeit unhappily, there are differing views about what is best for the children moving forward.

How often have family lawyers heard clients tell them that they are hesitating in proceeding with a separation (or divorce) because they are concerned about the effect such a separation would have on the children.

In family law circles it is almost accepted that there is a  large category of parents who would not consider divorcing, no matter the extent of the deterioration in the  relationship, until such time as their children have reached a certain age.

The thought process seems to be that there are no circumstances where it would be better for children, that their parents separate despite the fact the children may be witness to continual arguments and will be all too aware of the animosity if between their parents.

There is a view that older children (or even grown up children) are better able to cope with the  separation than younger children .

Can it be the case that children are better served by living with parents who decide to remain in an unhappy long-term relationship?

There are no rights and wrongs, but if a relationship has genuinely broken down, after both parties have made their best efforts to make it work, is it in the best interests of the children for the family to stay together.

What is paramount is the children’s health, safety and happiness.

Putting the children first, does not mean that parents should stick together, no matter what. It means that if a separation has to take place then the parent should work together to ensure that the children understand the reason for the separation and looking forward the arrangements are in place to ensure that the children maintain a relationship with both parents.

There may be disagreements about finances , furniture, or whatever. But if the parents are putting their children first, then such disputes should not affect any of the discussions relating to the arrangements for the children and the parents have the responsibility  to do their level best to smooth the transition for their children and minimise any disruption.

Family lawyers have the professional responsibility to ensure that their clients are aware of all the possible ways of resolving differences and helping the client to choose the correct way forward.

If you’re looking for advice please don’t hesitate to get in touch.


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