Varying a foreign maintenance order post the Maintenance Regulation
There seems no better time, than during Resolution’s Good Divorce Week, to highlight the need to change the narrative around families in conflict.
Sir Andrew McFarlane, the President of the Family Division, is currently halfway through his tenure as President. In a speech Sir Andrew gave in October 2021, entitled “Supporting Families in Conflict: There is a better way”, he made it clear that during his three remaining years as President, a priority for him is to work towards “the resolution of Private Law disputes between parents with respect to the care arrangements made for their children post-separation.”
During his speech, Sir Andrew referred to a report entitled “What About Me” prepared by the Family Solutions Group in October 2020, chaired by Helen Adam. The report states that, “Destructive inter parental conflict affects children of all ages, across infancy, childhood, adolescence and even adulthood. The ways in which parents communicate with each other impacts children’s long term mental health and future life chances.”
“What About Me” highlights and identifies key areas in which change must occur in order to support families in conflict. Of those recommendations, the first is to ensure that we have a language “which promotes child welfare and a co-operative parenting approach.”
Since the publication of the “What About Me” report, Helen Adam has written an excellent article entitled “Language Matters: Time to reframe our national vocabulary for family breakdown.” In that article, Helen Adam states, “A new language around family breakdown is needed to ensure safety and protect children of parents who separate.”
One of the key things that we can do now, therefore, is to change our language and create a different, less adversarial narrative. We know that language is powerful. It can create feelings of deep joy, love, contentment, resentment, hate and loathing, to name but a few. So, what is the language of family conflict and how can we change the narrative?
Parents, reporters and politicians often use adversarial language. Over thirty years ago we moved away from the term “custody” and towards “parental responsibility”, as set out in the Children Act 1989. Yet, headlines in newspapers and story lines in television programs will tell their readers and viewers a different story. The word “custody” can scream out at you from the pages of a newspaper and from our screens. It brings with it the feeling that a child is there to be argued over, rather than nurtured and loved throughout what will be an exceptionally difficult time in his/her life. Being at war or having a battle over children seems commonplace in headlines. This is outdated language. This is adversarial language.
Parents also want “residence” of their children and only allow the other parent to have “contact” with their children. Yet seven years ago, the terms “Residence Order” and “Contact Order” were replaced by the term “Child Arrangements Order”, as set out in the Children and Families Act 2014. Even with the introduction of the principle of shared care, this instead invokes in many parents a need to have an exact division of time with the children, rather than stepping back and thinking about what is best for their child. Sharing care does not mean 50:50 of the child’s time. Helen Adam is clear that, “The starting point is therefore 100:100 and, within that, to find practical arrangements that work well so the child can enjoy a close and nurturing relationship with both parents.” It may well be that the arrangements are somewhere near 50:50, provided that the child’s needs are at the centre of those arrangements. “This is all about reframing language away from a parental assertion of rights to an understanding of child welfare.”
We as practitioners are aware of these changes and we use the appropriate language. But what about our clients? The language that they use is still very much of a previous era, wanting custody of their children but willing to agree to contact. The very use of this language is outdated and it can be argued that it is affecting how our clients move forward on their parenting journey. We as practitioners of course inform our clients about the language of family law. We can encourage clients, wherever possible, and when safe to do so, to be less adversarial when trying to make arrangements in respect of their children.
But society as a whole also has a part to play. Now is the time to re-write the language of family conflict and to educate parents, the Press and politicians to ensure we all understand that there has to be a more constructive way to move forward when parents live apart. Our children have a right to a loving and nurturing relationship with both their parents, when it is safe. Our children will thank us in the future if we put in the work now to make long overdue changes to secure their wellbeing.