What does 'home' mean for children whose parents have separated?

Associate Professor Kristin Natalier from Flinders University, Australia, currently visiting CRFR provides a summary of the research she presented at a recent Informal Seminar.

 

Home is a familiar yet complex idea. Its meaning extends beyond a physical dwelling to include a feeling of comfort, a sense of control over space, connections with family and other important people, and a site in which rituals and routines create feelings of belonging. A sense of home can be important in helping people build their identity, psychological wellbeing and trust in the constancy of people and things. It follows, then, that children will likely suffer when their needs for home are overlooked. Yet so far, very little is known about children’s experiences of home when their parents separate. 

 

Failing to focus on home is a lost opportunity to address an ongoing challenge in post-separation parenting laws and processes: how to prioritise children’s, not parents’, interests when determining care arrangements. Family law and international law emphasises a child centred approach but post-separation parenting arrangements are still largely determined with reference to parents’ needs, and linked to clock and calendar time. A focus on home shifts the emphasis towards children’s feelings and experiences. It can help us to ‘stand in children’s shoes’, to borrow a phrase from Carol Smart, and see post-separation parenting arrangements from the perspective of children. It draws attention to the matters children consider necessary to create a context that allows them to feel at home, and flourish. 

 

Our initial analysis of interviews with 22 children suggest that home matters. For example, Zac described what he liked about being at his father’s house: “Just being with my dad and just having fun with him, working on my car and just doing boy things”. His comment highlighted how children can feel at home when:

 

• there was an atmosphere of ease and comfort;
• their relationships with others signalled they belonged in that space;
• they spent time with parents and other meaningful people in ways that reflected shared interests and experiences; and
• they could do and have things that mattered to them.

 

When children felt at home, their experiences might seem unremarkable. However, they are a reminder of the importance of relationships and often mundane family practices in children’s post-separation lives. The times and dates children stay with a parent were not as important as what my colleague Bruce Smyth has called ‘being in the moment time’ – those unstructured and intimate experiences that build connection with others.

 

Some children described feeling not at home at a parent’s house. An equal shared care arrangement did not allow Benjamin to build two homes; rather, it removed him from his home (his mother’s house). He said of his father’s house, “I feel like I’m on an involuntary holiday, like I’ve been taken away from my home and I don’t want to be there”. Benjamin dreaded going to his father’s house, which he found oppressive and which brought him face to face with large and unwelcome changes in how his father lived his life. His mental health and relationship with his father eroded as a result.

 

Benjamin’s parents were responsive when he talked to them about his feelings, and changed the care arrangements so that Benjamin no longer had to stay at his father’s house. His family’s emphasis moved from nights spent at each parent’s home to Benjamin connecting with his father in different ways – away from the place where he did not feel at home. Importantly for Benjamin, they developed routines and a meaningful connection that were not rooted in a place, but in an activity: football. Benjamin’s father attended every practice session and game and in doing so, rebuilt a meaningful relationship.

 

The idea of home can sensitise parents to the importance of attending to children’s lived experience of time– how they feel on a Thursday night, not whose house are they sleeping at on a Thursday night. In emphasising children’s experiences, home might decouple relationships from parental residence, and instead highlight the alternative ways and places in which meaningful relationships can be built – a sense of home, away from home.

 

 

 

Professor Belinda Fehlberg (The University of Melbourne), Associate Professor Bruce Smyth (Australian National University), and I have received funding from the Australian Research Council to explore these ideas further. We have undertaken some initial analysis (here is a summary: https://www.familylaw.co.uk/news_and_comment/children-s-experiences-of-home-after-parental-separation#.Ww6GM2eWyUk) and are about to talk to a much larger group of children and their parents about what home means when parents separate. We are aiming to understand children’s experiences of home after separation as a means of promoting new ways of attending to children’s voices when their living arrangements are decided post-parental separation.

 

 

Associate Professor Kristin Natalier

College of Humanities, Arts and Social Sciences (Sociology), Flinders University, Australia.

Prioritising Children’s Autonomy is Prioritising their Best Interests

Dr Aoife Daly argues that when judges make decisions about children’s best interests in courts, they often think that they are protecting children by taking decision-making from them, but this fails to acknowledge that children are experts on their own lives.

In my recently-published book Children, Autonomy and the Courts: Beyond the Right to be Heard, I look at cases where courts decide children’s best interests (for example about parental contact) to see how much influence children themselves have on decisions. I examine cases from liberal democracies all over the world and 11 countries in detail, including Scotland, England and Wales.

It seems that children in these cases find their wishes easily overridden. Common decisions from around the world include children being forced into contact visits with estranged parents (sometimes with the threat that the police or court staff will physically force them). In one case a 16 year old was not allowed to give video testimony in care proceedings; and in another a 15 year old was compelled to have inoculations against her will because her father wanted it. Compare these scenarios to adult ones: adults are never forced into relationships or non-essential medical procedures ‘in their interests’.

The instinct of adults, including judges making best interest decisions, is to protect children. This approach is well-intentioned and it recognises rightly that children’s capacities are developing and that they are lacking in experience relative to adults. They may need time, support and information to form an opinion. Sometimes they might not want to give an opinion at all and that should be respected too.

Yet in many cases, children have unmistakable wishes about a situation. An inquest opened recently into the murder of Ellie Butler. The six year old had been living almost all of her life with her grandparents, but was sent by a family court in 2013 to live with her violent father though it seems that she had begged not to be returned. She was beaten to death by him within a year. Adults often ignore that children might well understand their own best interests. It can be very difficult for children to be taken seriously when their wishes incline against strong societal assumptions, such as the need to prioritise the position of birth parents. Younger children find it particularly challenging to get adults to take their views seriously.

I argue in 'Children, Autonomy and the Courts' that it is illogical and unjustifiable that children do not have greater influence in court decisions determining their best interests. In liberal democracies, autonomy is held as the most important characteristic for the individual. It is prioritised in medical law for example, and increasingly is upheld to the extent possible for adults with cognitive disability (which demonstrates that decreased ‘capacity’ need not prevent prioritisation of someone’s wishes). Yet judges can make decisions about children without having to prioritise autonomy. Children’s wishes can be treated as just another factor and overridden with ease.

In my book I argue that a ‘right to be heard’ does not go far enough for children. I propose that a children’s autonomy principle, respecting children’s wishes unless significant harm would likely result, would ensure greater support for children in proceedings, and greater obligations on adults to engage in transparent decision-making. It would also mean better best interest decisions, because it is only by giving appropriate priority to children’s own wishes that we can make good decisions on their behalf.


Dr Aoife Daly is a Senior Lecturer in the School of Law at The University of Liverpool. She has worked and researched widely on children's rights and has held a number of NGO and academic positions. She also has teaching and research interests in a number of other areas including family law and civil and political rights. She researches human rights issues through the lenses of social justice, gender and psychology.

Something old, something new...?

Dr Jane Mair, Senior Lecturer (Law) at University of Glasgow and  co-author of  'All Settled? A study of legally binding separation agreements and private ordering in Scotland?' considers the implications for Scotland on the recent recommendations from The Law Commission (England and Wales) for a Nuptial Agreements Bill.

The Law Commission (England and Wales) recently published their Report on Matrimonial Property, Needs and Agreements (LawCom No 343). The culmination of an extended project, they are recommending new legislation which would introduce “qualifying nuptial agreements” and have presented a draft Bill; the Nuptial Agreements Bill.

These recommendations and the proposed new legislation offer something very new for English law. Even with a clear message of support for agreements from the Supreme Court in Radmacher v Granatino 2010 UKSC 42, pre-nuptial and post-nuptial agreements between parties are currently not contractually enforceable.

For Scotland, this is nothing new. Marriage contracts – pre or post-nuptial – have long been established as enforceable and separation agreements in particular have become increasingly popular. A recent study of 600 separation agreements registered in Scotland in 2010, found that the use of agreements had almost doubled since 1992 (Mair, Wasoff and Mackay, All Settled? A study of legally binding separation agreements and private ordering in Scotland, 2013, ESRC). Thanks to a simple system of registration in the Books of Council and Session and without any need for court involvement - couples can easily enter into legally enforceable agreements which deal with the consequences of divorce, dissolution or separation.

So is there anything new for Scots law in what England is proposing? The flexibility and ease of the Scottish system may be the key to its success. It has grown organically, with little need for review, and the multi-purpose format of the registered Minute of Agreement accommodates agreements entered into at any stage in the relationship. Perhaps what Scots law should now do is reflect on some of the concerns and protections which are considered in detail in the Law Commission’s report. In distinguishing between pre-nuptial and post-nuptial agreements, for example, they comment (para 1.11) that:

“The former involve an element of prediction; the parties are setting out what they will need, and what they will be content with, in circumstances whose reality they may be unable to foresee. Separation agreements on the other hand deal with a known reality or at least one that is immediately anticipated”.

This is not a distinction which is highlighted in Scots family law. Aside from the general contractual scope for challenge, the only specific provision in Scots law allowing for setting aside or reduction of a “nuptial agreement” is to be found in section 16 of the Family Law (Scotland) Act 1985, which applies in the context of divorce and operates only “where the agreement was not fair or reasonable at the time it was entered into”. Section 16 applies “where the parties to a marriage have entered into an agreement as to financial provision to be made on divorce”; held in Kibble v Kibble 2010 SLT (Sh Ct) 5 to include an ante-nuptial agreement, which purported to provide for possible future divorce. While parties who enter into private agreement can feel reassured that the terms will be enforceable, they do need to consider carefully the long term effects. What seemed fair and reasonable to them prior to marriage may not look so attractive – to one party at least – on divorce.

There is nothing new for Scots family law in the idea of openness to legally binding nuptial agreements but it might do no harm to take a new look at an old form.

Read the CRFR briefing: Legally binding agreements: property division and child care when relationships break down.
Read the full report: All Settled? A study of legally binding separation agreements and private ordering in Scotland? Final Report.
Contact Jane Mair

Breaking down the finances of breaking up

Dr Jane Mair on new research on separation agreements in Scotland. Private settlements have increased but public money should ensure everyone has access to legal advice.

Scots family law has a long history of contracts being used to regulate relationships – ante-nuptial (that’s what the English call pre-nups), post-nuptial, marriage settlements, separation agreements – there are examples of all of these being used widely and legally recognised going back centuries. 

In the 19th century, no wealthy couple – except the most foolish or reckless – would have considered getting married without a carefully drafted marriage contract. 

In the days when divorce was much more difficult, expensive and less socially acceptable than it is now many married couples would have formalised the end of their life together by means of a separation agreement. That way, without the final, costly, step of legal divorce, they would have been able to sort out their debts, make provision for maintenance of the wife and children and agree how to share the furniture – not to mention signaling to the outside world that they were no longer a couple. That was important because in those days a wife could “pledge her husband’s credit for necessaries” – ie buy food at the corner shop on her husband’s slate.

Marriage, family life and law have changed a lot since then, but far from being out of date, contracts and private settlements are still big news in Scots family law. 

Separations agreements doubled in a decade

We have just published a report into the use of separation agreements and, as expected, they are being used to a significant extent. Our study looked at a sample of 600 written agreements from 2010 and from that sample we estimated that, in relation to divorce statistics for that year, there is the equivalent of roughly one agreement to every two divorces. That’s almost twice as many as were being made in 1992 – the last year there was any research into these agreements in Scotland.

Separation agreements are no longer used as an alternative to divorce in the way they were in previous centuries. They are used now in conjunction with divorce actions. You still need to apply to court for the divorce itself but everything else can be sorted out privately, by agreement - property, money and children. Assuming, of course, that you can agree!

One of our findings was that in coming to agreement, women are in danger of losing out financially later in life. Women’s decision about whether to retain the family home or renounce their entitlement to a partner’s pension might make sense in the here and now, but may have a long-term negative impact on their income.

While the majority of women still take on the care of children, there appeared to be little recognition of the financial cost that such care brings and a significant number of women said they were struggling financially following separation.

Separation agreements have grown in popularity and appear to serve families well. The number of separation agreements has doubled since 1992 and the majority of agreements we looked at were being stuck to. A key factor highlighted by many was the need for access to good, affordable legal advice. To make sure that everyone benefits from this way of arranging post-separation life, we need to make sure it’s not just the wealthy who can afford to make the best arrangements.

Read the briefing

Read the full report

Media coverage in The Herald  9 August 2013

Contact: Jane Mair