How does shared care work and other child related issues on divorce?

Tamsin talks to Katie about how to make arrangements for the children of a marriage when you separate. What are the best ways to go about it, what the options are and what happens if things go wrong?

Director of Financial Planning and Chartered Financial Planner Tamsin Caine has a strong background of over 15 years within the financial services profession. She began Smart Divorce following her own experience with divorce; she now advises people in the same situation as she once was, enabling them to take back control of their life and finances. Smart Divorce website is www.smartdivorce.co.uk. Contact her by email tamsin@smartdivorce.co.uk.

Katie Welton-Dillon has specialised in family law from the outset of her career. As a trainee solicitor in 2009, Katie worked alongside the managing partner and head of family law at a top Manchester-city based firm. Upon qualifying in 2011, Katie worked at a niche and specialist family law firm, developing her skills in all areas of family law including divorce (including those with an international element), complex financial settlements and particularly cases involving children.  Katie has joined Hall Brown to head a specialist children law team.

Katie has become known for her knowledge, passion and experience of dealing with cases involving children including the arrangements for a child following the breakdown of relationships, child relocation (both internally within the jurisdiction of England and Wales and internationally), child abduction (the removal of a child from their resident country without the other parent’s consent) and dealing with complex cases involving domestic abuse, substance misuse and mental health issues.

• Email: katie.welton-dillon@hallbrown.co.uk
• Direct: 0161 804 9718, Mobile: 07526 175824

Transcript

Tamsin

Hello and welcome to the Smart Divorce podcast. This podcast is for you if you're thinking of separating, already separated or going through divorce. My name is Tamsin Caine, and I'm a chartered financial planner. We'll speak to some fantastic specialists who can help you to get through your divorce, hopefully amicably and start your new chapter positively. Now, over to today's guest.

Hello and welcome to the Smart Divorced podcast. I'm delighted to be joined today by Katie Welton-Dillon. Katie is the head of Children Family Law team at Hall Brown Family law in Manchester. And she has over 10 years experience working in family law. Welcome, Katie!

Katie

Hi! Thank you! Nice to speak to you!

Tamsin

So when we first spoke, you explained to me that you only deal with children's issues and not the financial side at all. How does this work?

Katie

So, I've currently been specialising Children Law since I was a trainee, so about 11 years ago, and just kind of naturally fell into that area. I have done both so, for a good number of years, maybe 5-6 years I did both areas and so divorce, finances and children,  but always kind of gravitated towards the Children Law really. And since I joined, during Hall Brown, we now have a specialist Children Law team, and I think that there are different skill sets between practitioners who mainly do divorce and finances and then practitioners who do Children Law. I think it's a brilliant way for clients to ensure that they have a complete specialists on, particularly when it's something that you know is so crucial to their lives. And they want the best at that really difficult time. And so if a client comes to us and they've separated and they were married or they were cohabitating. And then normally what we do is we have a joint meeting at the outset with one of our specialists divorce, so one of our specialist divorce lawyers and then me or one of the members of my team. And we look at it as a whole. And then the client will have the people to contact for each matter and so that they get in the specialist for each individual area. So it works! It works really well, and I think it's a great benefit to clients, really!

Tamsin

Yeah, that does make complete sense because people I speak to when they're first separating, their biggest concerns are: what's gonna happen with arrangements for the children and what's gonna happen with our finances and to have somebody specialising in each of these areas does make complete sense.

Katie

I think as well that we.. it's really easy to link the two together, so people can often kind of group their finances and children together. And actually they should be dealt with really distinctly. And you know, they are two completely separate issues. And by having two different lawyers, it keeps that distinction and it helps not muddle the two together. So you can entirely keep in your focus on what's best for the children, when you're speaking to me, for example; rather than having a general discussion about everything in one go.  And I think that really, really helps - really helps moving forwards.

Tamsin

No, definitely. So what are the most common issues that are brought to you when people are separating, around the children?

Katie

So we have quite a varied case load really. I assume the most common is that there's been a separation, how are we going to ensure that the children get to spend quality time with both parents whilst also ensuring that there's stability and they're not moving backwards and forwards and that everything's working for them. So that's kind of the most of our cases. We also deal with a lot of cases that that's the basis but then there are additional issues to address. So domestic violence and significant mental health issues, which can obviously complicate matters and we have to look at those carefully. And again it's the same kind of principles you're looking at, how can the child or the children spend quality time with both parents. But there are issues that need to be assessed and carefully considered and then I think as well what one of the most common things that we do as well is that when people separate, often one parent wants to want to relocate, particularly if they're from a different country, or they've moved, for example, if their partner had a job and they've moved from their home, and then when they separate and they are starting themselves without the support that they need. So we have quite a lot of cases where people actually want to return home either in the jurisdiction of England and Wales or outside, so this needs to be look at as well.

Tamsin

That must be really difficult to sort out that one.

Katie

Yeah, it is because it's so black and white. There is no... there should never be kind of a winner or a loser in court proceedings that's not the way we look at it. We always look at it from the children's perspective, but when it's a relocation, there very clearly is: someone that gets what they want and someone who doesn't. And it can be absolutely life changing. We've got cases at the moment where people want to return to the U.S. and Dubai, to Australia. And that's such a significant change from living in the same household as your child to then the child being on the other side of the world. So they are really difficult emotional cases.

Tamsin

Yeah, I can't even imagine how I would feel if my ex husband had wanted to take the children half way around the world, that must be...

Katie

Yeah, exactly. And I think that they are quite complicated matters in the mix. Sometimes people want to relocate cause they have a new partner and they've been offered you know a job and and they want to start a new life. And you can see it from their perspective that that relationship has ended and they want to move forwards with their lives. But for the parent, who would essentially be left behind? It just seems so, it's so difficult for them to understand. And then obviously the kids are in the middle. So yeah, they are probably the most.. kind of the most emotionally draining cases to deal with because the odds are so huge.

Tamsin

I can only imagine... how on earth do you go about resolving those kind of issues?

Katie

Most of those cases sadly do end up in court because if you've got to the point where you're talking to a solicitor, because you want to relocate, then generally people have already had the conversation with their partner, with their ex-partner. So they do end up in court. So you apply for a specific issue order. So essentially you're asking the court to give permission for you to move the children out of the jurisdiction when their mother or father doesn't consent. And it's normally a kind of a three stage process during court and sadly there's very rarely any agreements. They tend to go all the way to a final hearing where a judge is deciding where these children should live.

Tamsin

Crikey, that's some responsibility as a judge.

Katie

I know, it's not a job I envy!

Tamsin

No, not at all. Something that I did wonder about was: you hear people talking about having custody of the children and custody is not something that the lawyers talk about in  this country is it? Can you just talk a little bit about the usual care arrangements when couples split up?

Katie

Yes, people talk about custody and access. So custody being that the child lives with one parent and how the parent has access to the child, and we've never had that concept in England. It's quite an American concept, but it's quite.. you hear it quite a lot. We used to have 'residence and contact' so the same kind of thing; 'residence' is equivalent to the custody, and 'contact' equivalent to access. But that was recently changed. so we now have what's called a Child Arrangements Order. So instead of having two distinct orders: a residence and a contact order, we have just one order, which governs the whole arrangements to the child. And the aim of it was to try to get rid of the language, the language of 'residence' and 'contact', which people can become focused on. And personally, I think that when one parent has the label of residence, sometimes it can make them feel or can make the other parent feel that they have more power or more control. So the idea was to get rid of the labels and have this one encompassing order. It works to an extent. But it's still... it's still kind of the language that's used within, it is still similar. So it would still say "the child will spend time with." So it's not quite.. I don't think it's gone as far as it could, but it's certainly better.

Tamsin

Okay, so are more of these orders dividing time that the children spend equally between the two parents?

Katie

Yes, I think there is, there's certainly been a shift. I've noticed a shift that when I first started out doing this area of work, the notion of kind of the child lived with one parent the majority of the week and then, you know, alternate weekends with their parents and maybe, you know, kind on teatime visit with mum or dad during the week. And so it's quite a traditional, for me, like, approach, but certainly over recent years there has been a bit of a shift to the courts accepting that you know, kids are very adaptable. And if you do it properly that you can have a good shared care arrangement that really works. And the children get the best of both worlds. So there certainly is a shift. Not in all cases - obviously we have to look at each one individually, but I think that there is a movement towards it and it's not gone as far as it probably could. When there was a change in the law, it was a campaign for there to be a presumption in a law that the starting point should be that the child spends equal time with both parents. And that wasn't endorsed. That wasn't inserted in the legislation. What was put in place is that there is a presumption, that the child should spend quality time with both parents unless there are risks. So it didn't go as far as some campaigners wanted. But nevertheless, I think there's been a bit of a shift.

Tamsin

Yeah, I guess that does rely on them both living relatively close to one another and are able to take children to school and so on. I guess if they're in different areas of the country, that will be a pretty tricky starting point.

Katie

Yeah, exactly. So, yeah, that's kind of a prerequisite, really, that you've got to be within a reasonable distance of each other in the child's school and to make it practically.. practical work.

Tamsin

Yeah, of course. So, in terms of the actual practicalities of the sharing of time. If you had agreed.. or if this process went as far as court, so a couple couldn't agree and it got to the final stage and to the final hearing with the judge - is the judge going to say: "Right. Well, you have them Monday, Tuesday, Wednesday. You have from Thursday, Friday and alternate weekends." Is that what a judge is going to do? Or do they simply say: "You will share the care equally between you?" How does that work?

Katie

Yeah, the judge will determine the specific arrangements so normally an order is split between term time and school holiday time. So during term time it would it would be specific. So the judge would say, like the example you gave me: Monday, Tuesday for one, Wednesday, Thursday for the other and alternate weekends; something like that. You know, there are lots of different variations. And a shared care ordenance doesn't have to be exactly equal. So you can have an order for shared care that's slightly unequal. But it's not a prerequisite that it's exactly seven and seven in a 14 day period. It can be variations within that. During term time there will be specific arrangements. During holiday time, and it kind of can be as flexible or as rigid as either the clients want, the parents want, or that the judge feels is necessary. So, for example, if it's clear that the parents really struggle with communication, then a judge may be quite specific regarding school holiday. So, for example, will say the school holidays are to be denied it equally between the parents and then in the summer it will be week one with mom, week two and three with dad, week four with mom... you know and set out the actual pattern and how it works. And where as other orders can just be that the school holidays are shared equally, dates to be to be agreed between the parents. So it's just trying to find, which works for that particular family.

Tamsin

So in terms of these types of cases, when they've been to court, do they.. do the parents tend to abide by the more defined cases where if this doesn't work right, where there are issues later on and they come back to you saying this is not working as it was supposed to, according to the court order?

Katie

Yeah, yeah, of course. I think I always say to clients that the best thing is to try and reach an agreement, because otherwise a judge who has no idea about your child or children, no idea of you as parents is gonna make an order that's binding against you. And really, it should be that even if you have to compromise, if you can get to a position that you feel more comfortable with, that's better than having something imposed on you, which you know might not work. So we always try and do that, if possible. Obviously, sometimes it's just not possible. And I think once an order is in place obviously it is then legally binding. So parents have to comply with the order. People don't. That's unfortunately a reality. And either there's a variety of reasons why that's the case. If it's... if one parent is saying: this simply is not working, the child has become distressed at moving between two homes or I have welfare concerns, then at that point you need to be speaking to the parents. If they don't agree, then sadly, probably mediation or solicitor and ultimately you would have to apply to vary the order because if the child is not seeing the other parent as they are supposed to, then you are in breach of that order and the other parent can apply for enforcement of that order. So again, the advice always is: be proactive. And if things don't work, you don't wait for the other parent to try and enforce the order or return it back to court. You know, take that first step yourselves. You're on a better starting point with the courts if you do. And the court will look at it, there has to be... I think there's a difference between kind of teething problems from there being actually actual issues. And I normally say to clients, if they come back a few weeks later, that you can't apply to vary this at this stage, unless it's something really significant. Because you just need to give it some time to get used to it and if further down the line, it's still not working, then we look at it, but the court would expect both parents to commit to it and try to make it work.

Tamsin

So couples who've been to court, how did they cope with co-parenting? I know from personal experience that we managed to go to parents evenings together. We go to sports things together and shows and so on. If there's any issues with the children, we're able to have a conversation. But we didn't end up going to court thankfully, we resolved everything between the two of us. I can't imagine if it's got to a point where we'd ended up in court; how on earth would we be able to have that same level of relationship? Now what's your experience with that?

Katie

Yes, sadly I agree. You know, court proceedings by their nature don't generally give rise to a good parent, co-parents in relationships at that time. I think that there are certain cases that court proceedings are inevitable and whilst you are in court, there are ways to approach court proceedings. And I think that's what you need to... parents need to find... if they're in a position that court's the only option you need to find a solicitor, that you have the right schtick with that understands how you want to approach it. Because, you know that everyone is different and solicitors will take different approaches. So if you want to go to court, but you want to try and maintain as best as you can, you know, a good working relationship, then you need to find a solicitor who understands that, and will take that approach. It doesn't mean that you take stuffed approach when you are in court, but you keep everything focused on the children. And you're only raising issues that really need to be raised and clients come to me with a whole list of concerns. And a lot of them are just a different styles of parenting. And then they're not going to be concerns for the court. So there is no point in throwing that mud and saying, having a, you know, having a dig at the other parent when it's not gonna move things forward. So I think that you can go through court and come out of it okay, if you both want to. I think the difficulty is that if there is one parent who is very adversarial and the other isn't - then this is bound to be conflict. My experience is that there can, whilst the court proceedings are going on, then obviously tensions arise in this increased conflict. Afterwards, you know, give it a good few months and I also say to clients: "try and keep contact to a minimum after court proceedings because I think you both need some time to kind of process what's happened.” And, you know, getting on WhatsApp and having a go at each other. It's not going to defuse itself. So if you can take a little bit of time out and then most cases do, after some time, parents do find a way to work together because ultimately they have to.  But, you know, it can make it more tricky.

Tamsin

Yeah, they definitely okay, totally agree with that. And so what would your advice be to couples who have recently separated or agreed to separate?

Katie

So I think, there's legal advice and then there's this advice that I've seen in my job that probably isn't legal advice, it's still good advice and I think the first thing is finding someone else, whether that be a counsellor or a friend, but who is a friend who is kind of, more, a bit more mutual than you can talk to. And essentially you use them as a bit of a sounding board, but also someone to have a bit of a moan at. So you kind of diverting your concerns and issues and anger to someone else. Because if you don't have that out outlay, then you'll find that the parents are doing that between them. You're not going to reach an agreement or find a good way forward if there's really high level of conflict. Other practical things like WhatsApp is just really dangerous and, you know, iMessages and things like that, because it's so easy just to fire off quick messages. And you know they are there forever and you say things you don't mean in the heat of the moment. It increases the conflict, and then, ultimately, from a legal perspective, if things do end up in court then those messages suddenly appear, and it can cause problems. So give each other space just immediately after separation. And then I think if you can't find a way forward between you, as I said before, you need to find a lawyer that you click with. You know, it's not just finding someone who's good at their job. You need to be on the same page. So what you want to achieve and someone that you feel comfortable with and supported, you know, supported by, because that's a big element of our job. You know, we are there to give very clear and frank legal advice. But we are also there at the most difficult time of people's lives and you need to feel that you have, you know, connection and understanding with each other. And then look at alternative options for trying to resolve disputes so mediation or - this is what we're trying to implement at Hall Brown is - an alternative to court structure so essentially having both parents come to either our office or their lawyer's office. Having their lawyers, trying to find a way forward between us and if necessary, bringing in some experts to help. So we have seen an excellent, well, a few excellent mediators, we have contacts with former cafcass officers, former social workers, you know, medical professionals. So you know, bringing someone in at an early stage to give advice really helps rather than going through the whole court process, which takes so long. If you get the advice right at the beginning and get input from an expert, it can really help to find a way forward and it's quicker for everyone to go on with their lives. And I think finally, just however difficult is, keeping the children at the forefront and not getting involved and not being drawn into petty fights and things that don't actually matter; doesn't move things forward. That's, that's really always the thing that I say to clients. If we go back to this point in a letter, will it actually help. Is it necessary first of all to protect your case and help. But if it's not, then are we're gonna meet forwards with this or are we just going to invite them to write back. Can we just carry on? We are not actually getting any closer and everyone's moving away from the same case, which should be the children.

Tamsin

Yeah, I think that's all really excellent advice. I certainly, I think that that fighting for extended periods of time between parents can't possibly be be good for the children in the long run. And, you know, I think the majority of parents want the best for their kids sometimes get and, you know, in the heat of the moment that all kind of gets too much for them and they they forget where the priorities lie. So I think that's it. That's really good advice. Is there anything else that you'd like to cover today?

Katie

I can't really think of anything. I think we've done a broad spectre of everything. And I think that my only other advice is that - whilst people think that obviously getting lawyers involved makes things more complicated - I think sometimes, if you get the right one, just having that bit of advice on the outset, you don't then have to instruct them. But you know, just understanding what the process is. You know what the pros and cons are of everything. It can help you go into any discussions that you have with your ex partner and be a bit more informed. And so that's another good tip really.

Tamsin

Yeah, I think that's excellent advice. That's been really brilliant! Thank you so much for joining me today, Katie!

Katie

You're very welcome, thank you!

Tamsin

Thank you for listening to the Smart Divorce Podcast! If you'd like details of our guest today or of myself so you can get in touch, please check out the programme notes.. Many thanks. See you again soon!