Couples separate. It is a common occurrence that is basically a fact of life.

Many of the separating couples have children. Very few of these children want their parents to separate but they can do nothing about it.

The parents have moral and legal obligations to their children. They should act in their children’s best interest.

They should work together to make arrangements for their children, reducing the impact of the separation on the children.

There should be common reassurances to the children (to those of an age to hear them) that the relationship with both parents will be meaningful and enduring while different from what went before.

As far as possible the children should be sheltered from conflict and the inevitable disruption of their lives should be minimised.

In many cases, this does happen. There may be disagreements about the details of arrangements or aspects of parenting but most parents sort these things out themselves. Despite any animosity that may exist they ‘go the extra mile to ensure that the children are protected and looked after.

In some cases, it does not happen. The parents cannot agree on what is best for their children. Sometimes they don’t even try to agree. It can be difficult to work with someone you have fallen out with. You do not respect them and you do not respect or agree with their views.

So a conflict arises which the parents do not think they can resolve themselves. Positions harden. The children, already reeling from the changed circumstances, involuntarily become involved in something worse.

Their parents are fighting. Why are they fighting? Whose fault is it? Is it something we did? Who is to blame Dad or Mum? Should I take a side? Whose side should I take?

The parents each consult a Family lawyer. There are further attempts to reach an agreement, but the parents have become entrenched.

There are several things the mother objects to. They relate to the way her former partner looks after the children during the contact visits. The father feels like a second class citizen. He wants equality, joint residence.

She stops him from seeing the children. He raises a court action seeking a residence order. Matters are now out of their hands.

The court will make a decision based on the available evidence. In a recently reported court case involving a dispute about the welfare of children, there was a dispute about the children’s schooling. Up until the court hearing, the two children had attended a Private School. The fees were expensive. The parties were fighting about money. Notwithstanding the financial position, both parents wanted the children to stay in the school and so did the children.

The Judge took the view that in light of the available financial information the parties could not afford to send the children to such an expensive
school and made an order for the children to be moved to a local comprehensive (non-fee paying) school.

By involving the courts the parents had lost control of the decision about what was best for their own children. Instead, a crucial decision was made by a third party on the limited information available.

Parents should make their own decisions about what is best for their children. If that is not possible they should look for a dispute resolution process that keeps control in their hands.

Parents in dispute could attend mediation sessions or negotiate using Collaborative Law. Both these processes allow for the involvement of other trained Professions but, importantly, the parents do not lose control of the decision making process.

There will be hard cases where these processes don’t work and a court action is the only way forward.

It is sensible for parents to only consider asking the court what is best for their children as a last resort