Supporting children through divorce

00:00:05 David Lee, Host

Hello and welcome to Podcasts by Brodies. My name is David Lee and in this family law episode, we're looking at how family lawyers work alongside experts from other fields to support children through legal proceedings.

Offering the legal perspective is Sarah Lilley, a partner in Brodies family law team based in Inverness. Sarah is the only triple accredited family law solicitor north of Aberdeen and one of a small number of family law solicitors in Scotland to be certified by the Law Society of Scotland in trauma informed law.

I'm also joined by Professor Ewan Gillon, clinical director of First Psychology and a consultant, counselling and health psychologist. Welcome to you both.

Sarah. If I can come to you first, as a lawyer, can you describe the kind of involvement you have with children whose parents are separated?

00:01:03 Sarah Lilley, Partner

Thanks, David. Yes, well, the short answer is actually very little, if any, direct involvement as children during parental separation. But the longer answer is that parental separation will be a very different experience for every child. I like to call it this, a spectrum of acrimony, really, when it comes to parental separation. On one end of the spectrum, the very amicable parents you can separate without very little, if any, animosity. On the other end of the spectrum are the highly acrimonious separations and, of course, during all of that, every child is different and will respond in a different way. In terms of very amicable separations, this is a situation where parents can agree arrangements between themselves, either with or without the involvement of a lawyer. In the highly acrimonious separations where the parents can't agree and actually in in the most acrimonious that I've seen, it's obvious that they will never agree moving forward. So those matters end up in court and they can in the most extreme situations spend years in the court system and in some situations, I've seen most of the child's young life, from almost from birth in the court system.

So, in terms of indirect contact, as a lawyer with children, we're always conscious of the child during this process and in the background almost, because we act for usually for one or other parent, we're always conscious that there's a child or children there and we hold them in our minds when we can. But in terms of direct contact, there are two scenarios in which we as lawyers meet children. The first would be when we actually act for a child as their lawyer, now that's a very rare thing to happen, and it's not something we do very often as family lawyers and there's a multitude of reasons for that. I've done it a few times before but the more regular direct contact with children is in our appointments as child welfare reporters to the court, so several family law solicitors across Scotland are appointed as child welfare reporters and one element of that can be to speak with the children involved, usually in a litigated situation, and obtain their views, and then feed those views back to the court.

00:03:44 David Lee, Host

Thanks very much, Sarah. Ewan from the psychologist perspective, in what circumstances might your services be required and is it appropriate in all cases of relationship breakdowns involving children or just specific ones?

00:04:02 Professor Ewan Gillon, First Psychology

There are two kind of main ways psychologists will get involved in these kinds of difficult situations. The first one is to help courts make decisions through assessments and various processes around that by undertaking assessment systems, making recommendations and so on. That's not an area that I personally am involved with at all. The other way in which psychology will be involved is through therapeutic or supportive work for children and young people and families involved in separations that may be difficult for the children and young people concerned, so we offer a whole range of different types of input in those kinds of situations. As Sarah pointed out, the very different experiences of children, young people going through that kind of circumstance.

00:04:50 David Lee, Host

How do you decide which type of psychologist is appropriate for a particular circumstance? What type of psychologist might get involved?

00:05:01 Professor Ewan Gillon, First Psychology

Well, the main kind of work in the therapeutic areas related to mental health and well being. So that will tend to be clinical counselling psychology, potentially educational psychology if there are school related or educational related issues. So often you might find a young person's behaviour at school is impacted by what's going on at home or there may be some behavioural issues at the school and noticing that may or may not be related to what's going on at home. So the education psychologist would be involved potentially in the educational setting to help support the child and the family in that way, and they may work alongside a more mental health focused psychology, they may not, but the education of psychology tends to be plugged into the schooling system much more fully. The therapeutically orientated psychologists will tend to focus more on the well being side of things.

00:05:54 David Lee, Host

What kind of information does a psychologist need to have the most effective input in these very, as Sarah has already described, challenging and acrimonious, situations that are very difficult for the child?

00:06:11 Professor Ewan Gillon, First Psychology

Any piece of psychological work starts with an assessment and that is very deep in terms of its intention to understand the problems as experienced by the child or young person so that will mean an exploration of their experience as their behaviours, it will mean meeting with them, meeting with parents and potentially reading or having access to other professionals who are involved with the intention to form the broadest possible picture as to what's going on and often what's going on may not be quite what you think is going on until you've done the work. So, the more analysis and the more information you have the better. Ultimately what you're trying to do is a form a picture, which then leads on to a strategy around intervention that can hopefully be of help.

00:07:03 David Lee, Host

In an ideal scenario, what are the skills and the experience that are most valuable that the psychologist brings to this kind of situation?

00:07:16 Professor Ewan Gillon, First Psychology

The ability to form relationships with children and young people is important because obviously putting them at the centre of the process is vital, so that's an important part of this. What we don't want to do, as practitioners, is to come in and effectively be a voice of authority, which simply reinforces some of the problems the child might be experiencing. So really being able to build those kinds of relationships, but do so in a in a professional way, that also allows an impartial view to be formed and that can mean, you know, taking the different viewpoints of parents and other stakeholders into account, potentially working with parents, because obviously children and family are systems and you'll have to think about the system that the child is embedded in to be able to work effectively with it. So sometimes there are parental issues that need to be addressed. Sometimes separation affects parents in adverse ways too, and they may be struggling and very distressed about what's happening in a whole range of ways. That may itself be causing additional distress to the child and young persons. So, there may be other strands of work that are involved. So, the ability to form good relationships to listen, and to take the impartial perspectives and to not get too caught up in the emotion of the situation I think is very important.

00:08:39 David Lee, Host

Closely associated with that is a situation where a recommendation by a psychologist will not suit both parties. So, what happens if a recommendation is made and then that's challenged by one of the parents or parties involved?

00:08:57 Professor Ewan Gillon, First Psychology

Well, assuming that this is not forming part of the court proceeding, as it may, it's very important if you're trying to support children and young people in a difficult circumstance, for parents to be able to both put the interests of the child at heart. Sometimes people have different views on what that means and that presents significant problems for a psychologist or any therapist working with a child to the point where it may not be possible to offer therapeutic or any kind of support if there is a dispute around what's helpful and what the problem is.

So, it's a crucial issue and that is one that would be addressed very much at the outset in undertaking any kind of work. So, both parents were very aware and bought into what was being provided and they were a clear understanding within both parties that the child's interests that must be put first rather than their own.

00:09:55 David Lee, Host

Thanks very much Ewan. We'll come back in a wee while to talk a bit more about how we do ensure that the child is very much put at the at the centre of this process. First, just back to you, Sarah, do you have any direct involvement with psychologists when you're dealing with cases like this? Is there any direct cooperation?

00:10:16 Sarah Lilley, Partner

Yes, there is. There are probably two quite distinct occasions in which we cross our paths with the psychologists. One would be, as Ewan has mentioned, is when the court orders a report by a psychologist, and that's done usually on the request of one or other, or both, solicitors acting for the respective parents and it's done for the purpose really, to help inform the court and help the decision maker, usually a sheriff or judge, if it's in the Court of Session, as to the state of the relationship between the child and their parents and to provide recommendations to the court as to what would be in the best interest of the child moving forward from a psychological perspective. Now, there are very few and not enough psychologists in the country who are doing that work. So, what's very important is that such reports are only ever ordered by the court in cases which really merit them, and in order to assess that, quite often I find myself picking up the phone to the psychologists I work with most regularly, and will ask them what they think about the set of circumstances and whether they think that their involvement would indeed assist in progressing a case. So that's one aspect of our work with psychologists. The other, and this relates more directly to what Ewan does, is in relation to the therapeutic work that they can do with children and indeed with their parents. So, we will often recommend to clients that either they themselves or their child, or indeed the family unit as you mentioned, may benefit from independent, psychological therapeutic support to help them during the separation process and or beyond it and in my experience that therapeutic support for children particularly can be very powerful in helping them move forward.

00:12:19 David Lee, Host

Thanks very much, Sarah. Just staying with you, Sarah, for now, Ewan started to touch there on this whole idea of keeping the child at the centre of the process. It's a sentence that's very easy to say, but very difficult to do sometimes. What are the challenges in ensuring that the child or children are kept very much at the centre of any legal process and what more do you think the legal profession can do to ensure lawyers keep that at the front of their mind?

00:12:52 Sarah Lilley, Partner

The challenges are many. I would say the primary challenges are when we have situations of highly entrenched positions of parents when there is a reluctance or inability on their part to see the views of the other parent or indeed the child themselves and the child can get lost in situations such as that. Another situation which we commonly experience is when children will tell parents what they think they want to hear, now that is, as I understand it, and Ewan can correct me if I'm wrong, a mechanism of self-preservation on the part of children and for their own protection they will tell parents what they think they need them to hear. The difficulty that then results in is that each parent can, in certain circumstances of high conflict, use that voice of the child and what the child has said to them against the other parent. So those are the most difficult situations we can very commonly come across. The voice of the child is probably the most important aspect of keeping the child at the centre and now, of course, much of that will depend upon the age of a child when they are in the midst of parental separation, and I, in my role as child welfare reporter, I think about this quite a lot. Whilst I do consider the voice of the child to be important, and they need to feel like they've been heard, it's a very fine balance between making sure they feel heard, but also not feeling that the weight of responsibility for decision making is on their shoulders. So, what I tend to do is explain to a child that their view is part of a jigsaw puzzle that the decision maker or the sheriff must put together so that their view is part of that jigsaw puzzle but there's so many other pieces of that puzzle to be put together for the sheriff to then make the decision. The other ways the views of a child can be taken during a litigation is by the use of a form called a form F9. This is the most used way in which a child's voice is heard, and these days it's common practise for a child of any age. Now it used to be children of 12 years, or more were considered of an age to be able to give a view. These days it's much younger than that and young children are expected to be able to give a view. Now, what that view is one thing and of course the weight attributed by the court to the decision maker to that view will differ depending upon the age and maturity of the child giving it. But the forms are usually sent to the child at independent locations such as their school, and they get support from an independent person such as a teacher to complete that form and then send it back to the court so the sheriff can read that and help to inform the decision making.

The other way a child's view can be taken is, as I've already mentioned, through a child welfare report. That's quite a commonly used process and the final way would be for the sheriff themselves to speak directly to children. That is less common and depends different sheriffs and different decision makers have different ways and attitudes of as to whether that's a good thing to do or not, but some children respond very well to being given an opportunity to speak directly to the decision maker. In terms of what the legal profession can do to support the concept of keeping children at the centre, fundamentally, as lawyers were part of a partisan process we’re acting for one person in a conflict situation. But the best family lawyers, in my view, will, whilst only acting for one parent, always hold the child at the centre of their minds and try to mitigate conflict wherever possible and that goes as far as the basic things like in the way we communicate with one another as lawyers, the way we communicate with our clients, just to try and keep the tension and distress and strain of the situation as low as possible, we are not there to add to stress, our job is to try and mitigate that and make the process of separation as smooth as possible.

The other thing I think is important is when children are in the middle of a litigation is to make sure that those court actions don't last too long. Some court actions, as I've already mentioned, can run for many years, and it's important that they don't linger for too long within the process. The other thing I think we can do as decision makers is to place as much emphasis as we can on alternative forms of dispute resolution. So, with that, I mean mediation and collaboration and I'm regularly involved in both of those types of dispute resolution and can confirm that they can be very powerful and effective tools in reducing conflict and bringing the parents together to try and resolve disputes with assistance from lawyers and the collaborative process or through a mediation setting.

00:18:13 David Lee, Host

Thanks very much, Sarah. Ewan, there's a lot there to think about, but again, you touched on it a little bit before, but what role do you think a psychologist can play most effectively in ensuring that the child does remain at the centre of the process? Couple of points that Sarah made, obviously, making sure that their voice is heard but not making them feel that the responsibility is sitting on their shoulders. What is the psychologist role when it works well in supporting the child in that situation?

00:18:47 Professor Ewan Gillon, First Psychology

There are two different elements to this. For me, the first one is how the child's views are represented in the process, so the voice is heard in the process, but of course that's quite a complicated thing because a child may not have a specific or set view. As Sarah pointed out, the child may be strongly influenced by a sense of loyalty to a parent, both parents, they've been extremely confused and distressed about what's going on and may not be in a position to have a clear understanding of the implications of what they're saying and may say different things at different times to different people. So, I guess part of the psychology input is around helping a child articulate in a coherent sense, generally what they think and what they want to help them make sense of the different, perhaps contradictory, feelings they might have. So that's part of it.

Secondly, it's not just about what they want, but how they feel and their experiences, because this is a horrible experience for everyone to be going through and for children who've got no control over it at all, particularly younger children, who perhaps are very embedded in the family system and have less of a sense of their own independent identity, it’s utterly awful because in some ways their whole life is being pulled apart. So, less in that regard about giving them a voice but giving them a place to express how they feel in whatever way they can do. That sometimes is through play, through understanding ways of talking about things or communicating, but just giving them a voice in a safe space that's not going to come back and inform part of a decision making process or be fed back to parents necessarily, but something that's for them that allows them to actually perhaps begin to work through and make sense of what's happening to adjust to it and to kind of express how they feel because that's often something that's quite hard for us to see and certainly for us to do when we're caught up in a confrontational process, it's quite hard to provide a safe enough space for our child or young person in that kind of circumstance.

00:21:03 David Lee, Host

Thanks very much, Ewan. Sarah, I talked in the introduction about your trauma informed law certification, how do you think that helps having that understanding of trauma when handling situations with children in these very difficult and challenging processes?

00:21:30 Sarah Lilley, Partner

I think as I've mentioned already, as lawyers, our direct involvement with children, and of course this is very different to what Ewan experiences when he works directly with children in these situations, but as lawyers our direct involvement is minimal usually. So, the training has taught me more about the trauma experienced by the parents and the impact that that can have on how they parent and how they deal with the situation of trauma being a separation itself. I learned about the four R’s of trauma informed practise the principles as such, which are to realise the prevalence of trauma, to recognise and understand the impact of trauma on our clients, to be able to respond and adopt our practise with that recognition in our minds and to resist retraumatising our client.

In summary, it has made me more aware of the trauma experienced by the parents in their lives and in their own childhoods, how that impacts upon them and to be more mindful and understanding when I'm advising them with the trauma they've had in my mind.

00:22:38 David Lee, Host

Thanks very much, Sarah. Ewan, do you think there is a place for more lawyers to be more skilled and better trained in dealing with child trauma in divorce and separation?

00:22:52 Professor Ewan Gillon, First Psychology

I think there's a place for all of us to think more deeply at times around children and their experiences of difficult situations, so I think it's wonderful that the legal profession is engaging with issues of trauma throughout the different areas of work and certainly in the field of children and families work, it seems to me, to be such a fundamental part of making sense of practise and engaging in constructive practise, although I totally understand the legal role and the role of the legal profession in that but to be able to see people as people as well, both parents and children, and recognise and remember that you know there's often very hurt, very upset, very traumatised people often in these processes and that those experiences will impact on what's happening in a whole range of ways and we have to try and manage that as best we possibly can.

00:23:46 David Lee, Host

How can how can we do that better? Do you think there is a specific type of training that we can do more of? Are there specific skills we need to encourage? What more can we do?

00:23:57 Professor Ewan Gillon, First Psychology

I think awareness is very important and the more that we talk about things in a trauma informed way and think about legal processes in a trauma informed way. I think it raises a greater understanding of these kind of issues more generally, which is very helpful. So, awareness is crucial. There's lots of ways of building awareness, training being one of them. I would very much want to encourage all colleagues to engage in that. The more we think about trauma is just the more we put people back in the middle of the law in some ways. That's the challenge for us all because also we have a job to do and often, I know many colleagues and legal profession are grappling with the responsibility they feel as a professional, as a lawyer, to do the best possible job they can but also, as a person to respond emotionally, empathically and supportively to the people they come across, and it's not always easy to do both.

00:24:53 David Lee, Host

I guess you'd agree with that, Sarah.

00:24:56 Sarah Lilley, Partner

I do and I think in terms of advice to parents who would want to minimise the impact of a separation on their child, I think that the big takeaway from this is to try and keep your child at the centre. The other takeaway is that it's important for parents to look after themselves when they're going through this process, it's that saying, isn't it? Put your own life jacket on first and you can't help anyone else unless you're strong and healthy and well enough yourself. I think that really does reflect in these situations.

Parents shouldn't hesitate to seek advice at an early stage from legal advice, but not just legal advice, they should seek support for their own mental health, there's lots of resources out there. There are psychologists, such as Ewan and his team. There are councillors, divorce coaches. There are also all sorts of people, friends and family, who can support the parents as they go through this. With that support, that will help the children involved. The other thing is that it’s important to remember, and which I see time and time again, a child loves both parents and desperately wants to maintain a relationship with each of them and remain connected to them and I don't think parents should ever forget that the child didn't choose the separation. They will need themselves support and time to adjust to this new landscape that's before them, they've had in their minds what their future is going to look like and then over a period or sometimes very suddenly, that landscape then changes. That's something which even for adults is difficult to navigate, let alone for children so everybody needs to look after themselves and each other and needs difficult situations.

00:26:47 David Lee, Host

Thanks very much, Sarah. A final word from you Ewan, what about advice from yourself to parents who would want to minimise that impact of a divorce or separation on children?

00:27:01 Professor Ewan Gillon, First Psychology

I think it's very hard sometimes when we're in conflict or we're going through a painful process to stand back from it enough to be able to think about it in a more objective, less emotional way. It's often we don't really think about children enough and their experiences. So, I think this being able to spend a little bit of time reflecting on the dilemma that children experience in these kinds of circumstances because they do feel loyalty to different parents and love for different parents, they have a huge number of worries and anxieties. It's a huge adjustment to their lives that's being placed upon them without their choice, it's just happening and that's profound and if any of us have that happening to us, we would be struggling with it in a whole range of ways. Sometimes we may be worth putting ourselves in their shoes and thinking what would it be like for me? We may have been through that experience ourselves, of course, and that therefore will flavour how we might behave. I would echo Sarah's suggestion around seeking support information guidance from friends and people who perhaps are familiar. Sometimes some professionals who are able to just provide a bit of solid and independent support because it is an emotional process and emotions can get in the way of enabling us to think dispassionately and carefully about the needs of our children and young people. That's not a judgmental thing to say. It's just a fact. Emotions do that to us. They upset us and when we feel upset, it's hard to often stand back enough. That's the crucial thing is to pay attention to ourselves enough and if we are upset or finding things difficult, to address that because then that will allow us indirectly in a whole range of ways, to offer a better kind of level of support to our children, and of course, that's ultimately really what we want to be doing.

00:29:02 David Lee, Host

Thank you very much to Professor Ewan Gillon and to Sarah Lilley for your expert insights today. Really interesting and valuable listening there.

You've been listening to Podcasts by Brodies, where leading lawyers and special guests share their Enlightened Thinking about big issues and developments involving the legal sector and what they mean for organisations, businesses and individuals across the economy and wider society. If you'd like to hear more, please subscribe to Podcasts by Brodies on all your favourite podcast platforms and for more information and insights, please visit brodies.com.