Crossing the Rubicon for the Sake of Child Arrangements

The run-up to Christmas is known to be a time of year when frictions between separating parents over child arrangements can become acute. Parents who once compromised over Christmas arrangements and the gifts that children were given can become trapped in irreconcilable disputes over matters such as where their children should spend Christmas day or how much should be spent on Christmas presents.

In an unusual case involving parents from the ultra-orthodox Satmar (Jewish) community, the Family Court ordered shared care arrangements in the context of seemingly irreconcilable differences between the parents. In this Keynote, Claire O’ Flinn considers what parents, locked in intractable disputes over child arrangements, can learn from the judgment handed down in X (No 3: Division of Religious Festivals) [2016] EWFC B91.

In early 2013, the parents’ relationship broke down and the father left the Satmar community. For the mother, the father’s decision was synonymous with him completely losing his faith, and she feared the resulting impact that contact with him would have on their children. The mother argued that the father had allowed the children to do things forbidden by the Satmar community. These included allowing them to ride their bicycles, see electronic devices and press switches on the Sabbath. Her view was that these actions placed the children at risk of criticism and possibly exclusion within their community.

The implacable positions of these parents was clarified in an earlier judgment (X (Number 2 : Orthodox Schools) [2015] EWFC B237), which noted that the parents were affected by “profound fear of the loss of their children to the influence of the other. The father fears the weight of the community against him, and the consequent loss of the children into the community, and the mother fears the impact on the children of exposure to the outside secular, fundamentally different, world which might influence the children away from Satmar and from her. The result is that both parents are riven with suspicion and hostility which gives rise to a degree of misinterpretation of things that happen, and a profound lack of trust.”

Where these chasms of difference between parental styles or standards appear post-separation, how can parents deal with the profound lack of trust that this can create?

It is not unusual for differences in lifestyle and world view to develop between parents post-separation as parents seek to express their newly found individuality outside of the previous relationship. While X (No 3: Division of Religious Festivals) focuses on religious differences between parents, there are often much subtler differences in styles of reward, discipline and routine in the care of children which can cause problems between separated parents. There can include matters such as foods that children are allowed to eat, the types of toys that they are allowed to play with, what they will be given for Christmas by each parent, and for parents of young teens, when they will be provided a mobile phone and the terms of that provision.

Ten years ago Hedley J reminded the courts and society in general in Re: L (Care: Threshold Criteria) [2007] 1 FLR 2050 that very diverse standards of parenting must be tolerated, including “the eccentric, barely adequate and inconsistent”, as must the unequal consequences flowing from those different styles of parenting. X (No 3: Division of Religious Festivals) takes this a step further in reminding parents that they too must learn to tolerate differences in standards and styles of parenting that come to exist between them.

The court’s clear advice in X (No 3: Division of Religious Festivals) to parents who find themselves in such situations is that they must attempt to cross the Rubicon and see or experience what is on the other side. In the same way that Julius Caesar’s army’s crossing of the Rubicon River in 49 BC was considered by many Romans to be an act of insurrection and treason, it may feel like this to some parents. The court was clear, though, that not only must the mother accept that both parents were equally important in these children’s lives but the whole of her community must recognise the importance of the father’s role. Both parents, the judge concluded, must be part of the fabric of the children’s lives.

The judge encouraged the mother to visit the father’s new community, and the father to not knowingly cause the children to break Satmar religious rules. A close and loving relationship with both parents, the court stated, would require these children to move between two worlds possibly for the rest of their lives. The parents would have to learn not only to accept but also to support the different experiences the children would have with each parent. What the case of X (No 3: Division of Religious Festivals) makes clear in no uncertain terms is that the willingness of a parent to support contact with the other parent in the short, medium and long term will be a key determinant in care arrangements.

We understand that a child spending time with a parent who you do not trust can be terrifying. We also understand that the suggestion that you too should traverse the raging body of water that divides you and your ex-partner or spouse post-separation may be equally horrifying. This is where obtaining good advice early on can help your family to find a bespoke solution to suit you. Out-of-court options including mediation, arbitration and family therapy can be very worthwhile considering. We utilise our extensive network to point parents to solutions that enable them to co-parent beyond separation.

We believe that with the right advice, a route map can be developed that will allow you and your ex-partner or spouse to safely cross the Rubicon to a place of understanding and from there to be able to reach agreements on child arrangements that will allow your family to move forward. Our aim is to place you in a position where you can achieve the best result for your family, however different this might now look and feel to what it once was.