26 October 2021

Speaking a new language for families

By Maria Endall, Solicitor, Hayes + Storr.

Lawyers, judges, and other professionals involved with separating families have developed a greater understanding in recent years about the impact that parental conflict and acrimonious court proceedings can have on a child’s long-term emotional and psychological wellbeing. With that has come a better understanding of how the language we use in the legal profession plays into conflict which can compound the harm suffered by children of separated parents.

Mercifully, gone are the days when we referred to ‘custody’ and ‘access’ in the context of which parent the child lives or spends time with, terms that heavily infer rights of parents over the child. Nowadays, the focus is on the rights of the child and the responsibilities of the parents.

The language we use influences our thoughts, and we assume by using such terms a greater or lesser degree of control over the child, and in turn, a greater or lesser advantage over the other parent. Rather than assuaging the conflict between parents, outcomes for the child phrased in such terms only serve to perpetuate the conflict in the long-term.

Although court proceedings by their nature are adversarial, as legal professionals we have a role to play in reducing conflict between separated couples, whether in the context of divorce proceedings or resolving child arrangements post-separation.

Most lawyers today, particularly Resolution lawyers like us in the family department at Hayes + Storr, work hard to keep separated couples outside of the court arena where this is possible. By seeking to work with, rather than against, the other party to reach a resolution that addresses the needs of both parties, but more importantly, the children.

There will of course always be cases where court proceedings are necessary, in particular where it is necessary to protect the welfare or safeguard the needs of one of the parties or the child/ren.
In cases where one of the parties or a child has been the victim of abuse at the hands of the other party, then their protection must be sought through the courts, and these are the very cases that courts are there to serve. However, for those families where safeguarding is not a concern, separated couples should be encouraged to resolve their disputes through the alternative range of dispute resolution methods that exist.

Avoiding terminology which conveys conflict should also help separated couples see past their own negative feelings towards one another and focus on reaching a solution that serves the right of the children – where it is safe for the children to have a positive and meaningful relationship with both parents.

Instead of seeking ‘custody’ or ‘access’ parents are encouraged to seek a ‘co-operative’ parenting arrangement; one which acknowledges the fact that both parents are responsible for their children all of the time. Rather than seeking to assert rights or control over the child.

The family courts expect parents to encourage and promote a positive relationship between the child and the other parent. They cannot do this if they are solely focussed on maintaining or gaining control over aspects of the child’s care or life, or how they can restrict the other parent’s involvement.

There is an abundance of resources to help parents understand the impact their conflict with one another can have on their child’s psychological wellbeing in the present and longer-term – and how they can work together to reduce that impact.

The focus of parents must be on co-operating with one another, which requires positive communication.

If you need access to services that serve to help children understand and come to terms with the breakdown of their parents’ relationship and the family unit, then please contact Maria Endall on 01328 863231 or email maria.endall@hayes-storr.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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