HM Insights

How can you serve the best interests of your children following a separation?

When two individuals have made a decision to separate, it is quite rare that both parties are able to resolve the financial aspects of their separation and agree the future care arrangements for their children without the involvement of a solicitor.

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A separation and divorce can be particularly stressful for individuals even when there are no children involved. In such situations, both parties still have the daunting task of addressing their own future living arrangements along with the burden of attempting to unravel assets and debts which can be a complicated process. On a positive note, once the financial aspects of their separation are resolved, both parties are free to move on with their lives. In contrast, when there are children involved, the idea of no longer having to see or speak to a former partner, at least until the children reach adulthood is an unlikely prospect. Both parties will undoubtedly be required to continue to communicate with one another to some extent in order to make decisions based upon what is in the best interests of their children.

Unfortunately, in the midst of a separation, children can often become the victims of significant emotional distress. The impact of a separation upon a child can have varying effects which often go ignored. In many cases children feel torn between both parents, blame themselves for the separation and would prefer the family unit to remain as one. The consequences of an acrimonious separation are often evidenced when observing a child’s behaviour, their relationships with their siblings or via a notable change in their performance at school. Prior to a separation, both parents are accustomed to parenting alongside one another. However, post separation both parents there is a transition whereby both parents learn to begin parenting apart. Developing an effective method of communication with your former spouse or partner post separation is essential to successfully parenting apart. 

At Harper Macleod we believe that a significant degree of the distress and upset that a separation can cause can be prevented, simply by adopting the appropriate method of resolution from the outset. Although it can often be difficult to maintain a relationship with a former partner, the assistance of a Family Lawyer in the early stages can be of vital importance to achieving a successful form of communication and a positive outcome for you and your children long term.

Determining what would be the appropriate method of approaching the long term care arrangements for your children is a matter that we believe should approached carefully. As the circumstances of each case are different, it is a subjective task to determine the appropriate form of resolution. In Scotland, the most common methods of resolving disputes involving children include the following:

  1. Negotiation – allows both parties if they wish to instruct their own solicitors. It involves both parties exchanging letters via solicitors to try and reach a settlement.
  2. Mediation – involves both parties attending mediation sessions in the presence of an impartial third party mediator. Both parties must be willing to sit down with one another and engage in constructive negotiations. If an agreement is achieved both parties can enter refer back to their solicitors and enter a binding written agreement.
  3. Collaboration – The collaborative process is based on a contract involving both parties and also their solicitors commit to openly engage and act with respect and integrity throughout the process. Collaboration occurs by a joint meeting or series of joint meetings around a table to negotiate matters. No correspondence takes place in-between the joint meetings. Other professionals can be brought in to the process if their expertise is required. As part of the contract entered, both parties agree that they are unable to instruct their solicitor to raise a court action if the negotiation fails.
  4. Arbitration – The Family Law Arbitration Group Scotland (FLAGS) is a group of qualified legal practitioners appointed as Arbitrators. Arbitration is helpful in cases where there is an issue of principle where collaboration or mediation is not suitable and the case demands a decision. It avoids the requirement of the parties going to Court with the benefit that once the Arbitrator has made their decision it is a binding decision.
  5. Litigation – Raising a Court Action at a Sheriff Court or the Court of Session may be appropriate in situations whereby a Court Order is required as a matter of urgency or where all attempts of negotiation have been unsuccessful. Although the Courts are able to grant binding decisions, the length of procedure, particularly involving children can be lengthy and expensive. Both parties should be aware that once a Court action is raised, a degree of control is removed from both parents and rests with the deciding Court. The outcome of a Court Order may not be satisfactory to either parent but is ultimately what the Court considers to be in the best interests of the child.

Each form of dispute resolution offers a different approach to tackling the same issues. The implications of adopting the appropriate resolution at the outset can be pivotal in minimising legal fees, reducing the duration of negotiations, alleviating tension and importantly easing any child through the transition of a separation.  

Get in touch

For a confidential discussion with one of our family law solicitors to identify the appropriate form of resolution in your case, please do not hesitate to contact our family team on 0141 227 9545.

For an outline of what is entailed in the forms dispute resolution outlined above, please click here.