Good Divorce Week: Honouring Children’s Dual Heritage

How can this be achieved when separating parents cannot agree?  We suggest they seek out nuanced tools to problem solve and avoid the blunt instrument of court.

The week of 28^th November 2022 marks Resolution’s Good Divorce Week. The focus this year is to raise awareness about the crisis in our family courts and the alternative modes of dispute resolution that exist, which can better serve separating couples.

Our family court system plays a vital role in protecting the interests of the vulnerable.  However, when it comes to private children proceedings, the reality for many separating couples is that engaging the court to resolve questions about how their children should be brought up, or where they should live, for example, is a financially and emotionally costly experience and it doesn’t offer tailored and timely outcomes.  Even before the impacts of the pandemic, the family court system was beset with delays and under-funding.  These problems have only been exacerbated over the past two and a bit years, leading to less than positive experiences for most court-users.

The courts in private children disputes often serve as a blunt instrument, which isn’t able to come up with nuanced outcomes that will necessarily improve matters on the ground for the family in question.  Having emerged from months of proceedings, where separated parents are placed in opposition, it can then be very challenging to effectively and positively co-parent – and understandably so.

This can particularly be the case where separating couples hail from different countries of origin or from different cultural or religious backgrounds and cannot agree how to promote their children’s dual heritage after the couple has separated. Questions they may be grappling with could include, for example, the children:

• learning or speaking a different language,
• participating in cultural or religious practices,
• visiting extended family abroad, or
• having a second passport.

The court can, in theory, address any of the above questions in the event that parents cannot agree between themselves. Parents’ race, ethnicity and culture forms part of their children’s identity; having access to and being able to celebrate those differences will, in most cases, be enriching and have a positive impact on children’s lives.  Indeed, a child’s background is one of the factors in the welfare checklist that the court must take into consideration when making any decision about what is in a child’s best interests.

Binary issues – where the answer is yes or no (for example, should a parent be permitted to take their children to visit grandparents in the parent’s country of origin) – can more neatly be resolved by the courts, than questions which require a shift in behaviour on the ground.  That is because those issues require less of a nuanced response. (Although, for all the reasons given above, turning to the court will likely be a drawn out and expensive experience.)  Other issues are likely to require buy-in from the other parent, both in terms of the practical arrangements, as well as for children to have emotional permission (or even better, encouragement) to take pride in all aspects of their background in both their homes.

For separating couples that are grappling with how to promote their children’s dual heritage, more tailored and effective solutions are likely to emerge from engaging in mediation or family therapy, rather than through court.  These modes of dispute resolution can allow parents to reflect on a whole range of wider considerations that a court is unlikely to do. This might include tapping into the values or principles that unite them, reflecting on the dominant ideas from their respective cultures, their experience of migration or the challenges that the couple may have faced in marrying across cultures.  All these considerations might inform their present outlook.  This, in turn, may assist in understanding each person’s anxieties or reticence, giving rise to solutions for the family that from the outset may not have seemed obvious.

At FLiP, we work closely with families to identify the best way forward for them, advising and signposting them to other professional and expert assistance, where appropriate.. Selena Arbe-Barnes is an associate at FLiP and advises on the full range of family law issues.  She has dual heritage (she has Spanish and British nationality and was born in France), which makes her well-placed to advise clients on the issues raised in this piece.