The most senior judge in the Family Court in England and Wales will write to all parents who have made an application to court in relation to their children, or any parents who have received such an application, to emphasise the importance of trying to agree arrangements for children without the Family Court’s involvement.

This is the first letter of its kind from the judiciary, issued directly to parties to court proceedings relating to children. Sir Andrew McFarlane, President of the Family Division, cites research which shows that conflict between parents is harmful to children emotionally and to their brain development. He stresses that coming to court is stressful for all involved and likely to increase animosity and distrust between parents, which is likely to negatively impact their children.

What do parents need to think about when there is a disagreement about the care and arrangements for their children?

Sir Andrew McFarlane emphasises to parents that there is a legal expectation they will do what is best for their child, even when that is difficult for the adults. The English legal presumption is that a loving, open relationship with both parents is in a child’s best interests, unless such a relationship would be unsafe.

The letter reminds parents of their duty to communicate and make every effort to agree on issues relating to the care and upbringing of their children, and emphasises that this duty continues even after a separation or divorce. While the letter recognises that where there are concerns in a family about a child’s safety or a child being at risk of harm, a court order may be needed to protect the child where there are no such concerns, it is better for the child for the court not to be involved. Sir Andrew McFarlane’s letter also provides information to help parents resolve their issues outside of court.

With the right help, nine out of ten parents are able to agree what is best for their children themselves without asking a judge to decide. Sir Andrew McFarlane makes the point that a judge can never know a child’s situation as well as the parents do.

The President’s letter is a key intervention in the drive to keep as many disputes as possible outside of court, and to help parents find a better way to resolve disagreements relating to the care and upbringing of their children, putting them first.

Top five tips for parents in a dispute over their children

1. Where it is safe, most children benefit from the involvement of both parents and need to have a loving and open relationship with both.
2. Parents share equal responsibility for their children, and part of that responsibility is to talk to each other and try to agree arrangements for their children’s care and upbringing. This responsibility lasts beyond a divorce/separation and even if the adult relationship has broken down, it is essential to children that the co-parenting relationship endures. This is not always easy in the context of a separation. Where it proves difficult, help and support from experienced professionals is available.
3. If there are concerns about a child’s safety or that a child may be at risk of harm (including non-physical harm), the court may need to intervene to protect the child.
4. Where there are not concerns about a child’s safety or risk of harm, parents should try to agree arrangements for their children between themselves. If they cannot agree they should explore out of court options including family mediation, separated parenting programmes or entering into a parenting plan.
5. In most cases, court is not the best way to resolve issues relating to children and an application to court should be a last resort, taken only when all other options have been exhausted.

How can parents resolve disputes outside of court?

If parents cannot agree on arrangements for their children between themselves independently, there are a number of options they can pursue before asking the court to intervene. These include negotiations through specialist family solicitors, mediation (sometimes including the children) and arbitration.

The advantages of these out of court options include privacy, a greater control over the timescales and process for the parents and avoiding the often very significant stress and cost of court proceedings.