A Child’s Right to Matter When Parents Separate

Last week the Family Solutions Group launched their latest report; ‘What About Me? A Child’s Right to Matter’ presenting the results of two consultations which focussed on the needs of children when parents separate: https://www.familysolutionsgroup.co.uk/wp-content/uploads/2023/11/A-Childs-Right-to-Matter.pdf. The results shine a light on the fact that the needs of children when parents separate have been overlooked and there is no framework of nationally coordinated services, universally accessible to children.

It is notable in the context of our FLiP Cohabitation Awareness Week highlighting cohabitation reform that the report does not differentiate between children whose parents are divorcing having been married or separating at the end of a cohabiting relationship because, of course, the experience of the child is not determined by this, in itself.

The court system, when considering disputes about with whom a child might live and spend time, doesn’t differentiate – the fact that parents are married or separated is irrelevant.

However, when we look at the resolution of the financial issues that occur at the end of a relationship there is a significant differentiation, which in the context of growing numbers of children born to cohabiting parents, is worthy of consideration.

When a marriage ends, the division of assets is determined by the law in England and Wales under the Matrimonial Causes Act 1973.  Enshrined within that statute is the requirement to consider the needs of any child of the family first.  This means that questions about where a child will live and how their life will be structured is central to the way that the families’ assets are divided on divorce.

In contrast to this, the patchwork of laws applying to those who never married provides little focus on the needs and the future of any children (when considering the financial issues between the couple).  So far as the children are concerned, the “schedule one” regime (which enables a claim on behalf of children when the parents’ income exceeds a minimum threshold of £156,000pa), appears to be used by less than 2% of the population.  Further the CMS regime which is estimated to be the sole organiser of maintenance for around 16% of separated families, often fails to address the family’s payment regime as the authors of the system intended: as soon as there is any complexity, appeals are likely and these can take three years or more to resolve.

The approach of the family law profession to the impact of separation on children has transformed in recent years with a growing awareness of the harm that can be done when parents are caught up in long term, entrenched conflict.  The framework of the law under the MCA 1973 which puts children’s needs at the beginning of the discussion about the financial outcome, enables family lawyers to have a conversation about the children when there is no overt dispute about with whom they will spend their time.  It’s not perfect but it poses a sharp contrast to the invisibility of children when parents who are cohabiting separate – when there is no framework for that check-in or discussion to take place.

So, whilst all children of separating parents matter profoundly, protecting the interests of the growing number of children who are born into cohabiting relationships must be part of the focus for cohabitation reform.