When preparing for, or dealing with, divorce, the imperative to consider one’s future financial needs in a realistic and practical way is often a priority for couples. When children are involved, they should become the primary focus for parents and those advising them.
For children caught up in the marital breakup, the emotional consequences can be profound.
“Divorce can be one of the most harrowing experiences for any individual and the fallout can be worse than bereavement,” says Lisa Girdwood, a partner and family law expert at Brodies LLP.
Evidence suggests that separation itself, is not the heart of the problem; but rather, it’s how that separation is managed and how parents behave towards one another.
“There may be a correlation between an acrimonious divorce and how young people then develop. There may also be a link between experiencing hostility and acrimony between parents and poorer future educational attainment, an inability to form sound adult relationships and even the risk of becoming involved in crime – so an insightful family lawyer will try to ensure that separation involves as little hostility as possible.”
She highlights alternative methods of resolution that avoid court, including mediation and collaborative law, as means of addressing conflict in a constructive way. “These allow us to deal with the conflict in a supported way, focusing on the interests of the people involved and helping them to formulate outcomes which are right for them, and right for their children in a way that is less conflicted.
The child’s viewpoint
The corollary of divorce for children may be a bewildering assortment of emotions, ranging from fear and guilt to anger – and their views are important to hear.
”For many years in Scotland we have been bound to giving children an opportunity to express their views when decisions are being made that affect them, and parents, lawyers and those involved in making these decisions must take the child’s view into consideration”, says Girdwood.
Cases in the past have been overturned because the child’s views were not taken into account when decisions were made but how can they be effectively considered? “There are various options”, she says. “For example, the court might appoint an independent lawyer or psychologist to meet with the child and record their views. Or the child will have the opportunity to express their wishes about whatever living arrangements are being considered. The form they fill in has recently been overhauled and is now in a much more child-friendly, accessible format.
There are even emojis to enable the child to express how they feel.
“Questions such as ‘how do you feel now about where you live?’ are deliberately left open to encourage the child to speak and give an open narrative, not one that is prompted by leading questions.”
Girdwood also believes there are lessons to be learned from changes in the criminal sphere regarding the evidence given by children. “In children’s referral cases or where a child is a potential witness to a crime, they may have to give evidence in court.
“A recent initiative will transform the way children give evidence in these cases: all questions from the prosecution and the defence will be agreed in advance and asked by an expert questioner in a child-friendly suite, away from the court.
The focus will be on ensuring that the vulnerable child is as comfortable as possible and not exposed to the often harrowing spectre of court. “We can learn valuable lessons from that in family law, in divorce cases where evidence has to be taken from children,” says Girdwood.
The Brexit predicament
A no-deal Brexit is looming large at the moment – and if it transpires, it will have an impact on divorce law. “As part of the EU the clear rule has been that that divorce cases are raised in the country in which one of the individuals is habitually resident. That’s very straightforward,” explains Girdwood. “If there is no deal, the Scottish Government has passed a regulation that preserves habitual residence (where a person usually lives) as a ground of jurisdiction but which also provides that domicile (where a person has lawful permanent residence) is an alternative ground to raise a court action.
“However, this means that if you have one partner in France raising an action on the basis of habitual residence and another in Scotland on the basis of domicile you are potentially back to having conflicting actions in separate jurisdictions which will undoubtedly be more complicated and challenging,” she says.
Child abduction
This is a particularly traumatic area governed primarily by the 1980 Hague Convention on the Civil Aspects of International Child Abduction. “In instances of abduction, a child has to be returned to the country in which they were habitually resident before the abduction, unless the abducting parent can establish a defence, such as the other parent having consented to the removal. So if a child was abducted from Poland, France or the US for example and taken to Scotland, my role would be to ensure their return to what is legally considered to be their home country, where the best decisions can be made about their welfare,” says Girdwood. “Voting with your feet is not an option. If a parent wishes to live in another country and take their child with them, they need to ask permission of the court in the country where they currently live.
“And for young children who suddenly find themselves in a different country not speaking the language, with different cultural norms and deprived of friends, school and all the things with which they are most connected, the effect can be particularly distressing.”
Where children are involved in a divorce action, Girdwood welcomes a bill that is to be laid before the Scottish Parliament, which seeks to make mediation mandatory in most court actions. “If mediation was mandatory in most cases, that would be a real step forward for families and children,” she says.
For more information please visit www.brodies.com
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