Over the years I have noticed that a significant number of parents resist strongly any attempt to discuss the children with me or indeed with anyone else. Any discussion is vigorously blocked. For parents, I suspect that one of the most upsetting things about separation/divorce is the fear that children will be so fundamentally damaged that they will fail to nurture their talents or that their innocence will be compromised or taken away, their memories of childhood will be tarnished, they will become dysfunctional members of society or they will form unhealthy adult relationships. Over the years, I have found that this fear for many parents is so overwhelming they cannot even bring themselves to articulate it and so they block it out by refusing the discussion altogether. Is it inevitable that children will be damaged by separation and divorce? The good news is that it is not inevitable. Of course, children will have a problem with the separation of their parents and they will suffer. However, long term suffering and damage is something different altogether. All the latest research would say that children can come through separation and divorce in good mental and physical shape provided they are not caught up in or witnesses to a prolonged, bruising confrontation between the parents.
From the time that the decision is made to separate, the focus should be on childcare and management. Traditionally, we lawyers have tended to take the view that really the only issues that concern us are finances and property. Indeed, when I was doing my training, we were encouraged to think that way. We were told categorically that we were not counsellors and that we should only advise on the law and furthermore, that we should stay objective, professional and detached at all times. This is the way I was trained and I have questioned it for years. If we let in the emotions we might get swamped by them compromising not only our detachment but also our own health. It is true, that can and does happen but the answer is not to lose our ability to connect with the whole person, the answer is to train us in techniques that allow us to manage those emotions and to screen ourselves. Professionalism, objectivity and detachment are fine qualities in their place but not at the expense of humanity, emotional intelligence and common decency. Good family Lawyers should be able to balance all of the above. As I have said in many different articles, people come to us with emotional issues, financial issues, property issues, child issues and so on. In the midst of their trauma, we cannot expect them to compartmentalise themselves when they are speaking with us. At the very least, we need to recognize that our clients will be adjusting to relationship changes on many different levels, changes in the primary relationship between the couple, changes in extended family relationships, changes between parent and child and changes in the parenting relationship itself, social and work relationship changes, changed self perception as well as financial and property changes. Indeed, the financial and property changes may well be the easiest of the bunch. As lawyers, we cannot ignore any of the changes and serve our clients well. Since we are the first port of call for many families in trouble, at the very least we need to be up to date with professional and voluntary services in our area. However, handing out a list does not, in my view, fulfil this obligation to our clients. I am of the view that it behoves us to be able to stand over the names we give out to people and not just their qualifications. I always ask my clients for feedback on counsellors and therapists that I have referred them to or with whom they have attended without my knowledge. I am always on the lookout for new names, new skills and new services. I meet with and speak to everyone on my list. However, even that, in my view, is not enough. We, as lawyers, also need to be able to offer clients practical advice and information on all the things that concern them including their children. To do so, we need to be sensitive to the issues that clients are likely to encounter on their separation journey.
It is remarkable that while the vast majority of our family law clients will prioritise the health and well being of their children as their chief concern and primary focus, we lawyers will frequently ignore issues surrounding the children that we know exists, simply because the parents assure us that the children are not manifesting any “problems”. Just because a child is not misbehaving in school or their school work is not deteriorating, does not mean that there are no problems. Since we know that children will suffer to some degree when their parents separate then running away from that fact will not benefit anyone.
At the point of separation, clients are dealing with so much personal fallout that they may simply not want to take on board their children’s suffering as well. They are overcome and vulnerable. As lawyers, we need to offer reassurance and guidance and that means treating the client as a whole person, seeing the family relationships in context, being up to date with the latest research, having a basic grasp of the stages of separation and divorce ourselves and having a grasp of child issues in separation and divorce not to mention the ever handy list of referrals.
There are many issues that are likely to arise but one of them is “Should we speak to the children and if so when is the right time? Who should speak with them and what should they say?” This is one that comes up all the time. Even if a parent does not raise this issue, we know it exists and we know that it needs to be handled with sensitivity and so we should raise it even if the client does not. Many fine articles are written on this subject but we can certainly offer some guidelines. For example, where possible, both parents should speak to the children together having decided what they will say before hand, keeping it brief, child friendly and with no blame. Reassuring the children that the separation has nothing to do with them and that they cannot fix it is also extremely important as the research would indicate that frequently children will blame themselves for the marital or relationship breakdown. It is very important for both parents to reassure the children of their love for them and to distinguish for them the different kinds of love that exist and that the love of a parent for a child does not cease and will not cease. The children should be reassured that both of you will continue as parents and that they will continue to be loved by and to love both of you. Research shows that the self esteem of the children is bound up with their relationship with each of the parents. While emphasising them things that will continue for the children such as their relationship with extended family and friends, it is important to inform them of what will change. Where they will be living and with whom is very important information for them to have and they should not be asked to make any decisions in this regard. These are parental decisions and all the research shows that children do not want to be asked to decide these things. It is too much of a burden to place on them. Listening to them and being emotionally available to them is not the same thing as asking them to make decisions. Children need to be given all the details on where the moving parent will reside including contact details and reassurance that they can get in touch as often as they need to or if not, when they can get in touch. Sometimes it is not possible for a parent for work reasons to be available all the time to their children but setting aside a slot could be very reassuring to a child in this situation. A good parenting plan is very important for the children. Children like routines and they like to know what is happening and when. Research shows that a well thought out schedule placed where children can see whenever they need to, works best for them. Sometimes a parent will be moving away or will choose to minimize future ongoing involvement with the children. Difficult as this is, it is important to be honest with the children without being brutal and again without blaming. Finally the school needs to be informed without breaching the children’s need for privacy, about the situation so that they can keep an eye on the children. They also need to be given up to date addresses and contact numbers as well as being informed about collection and delivery from school.
Lawyers should be able to talk through these issues with their clients and offer some practical assistance and guidance as well as being able to refer problems outside their competency to good professionals who can assist. They should also be able to direct clients to articles books and research on parenting post separation. I know that many people, lawyers included, will see this as outside of the remit of lawyers. Recently I suggested to a colleague of mine also a family law specialist that we should advice on how to handle this conversation and she responded that “We are not therapists”. That is correct but we are family law specialists and if we are to call ourselves that then we have to offer more than just a bread and butter service – silver service at least!!
