Vardags Family Law Essay competition 2024/25 | 4th Place

Children’s Rights to Maintain Sibling Relationships After Divorce

Author: Lara Kovenklioglu – University of Law

Divorce often disrupts family structures, causing emotional and practical upheaval for children. Among these disruptions is the potential separation from siblings due to complex custody arrangements. Sibling relationships are crucial to children’s emotional development, providing stability and support during difficult periods. However, family law in England and Wales does not explicitly prioritise the maintenance of sibling bonds. Legal provisions, such as those outlined in the Children Act 1989 (1) , emphasise the best interests of the child, but this principle often focuses on parental contact, leaving sibling relationships under-addressed. This essay will examine the role of sibling relationships in child development, analyse the relevant statutes and case law that influence custody decisions, and assess the effectiveness of existing policies in protecting children’s rights to maintain contact with siblings.

The Importance of Sibling Relationships for Children

Sibling relationships are foundational to a child’s emotional development. Psychologists have long established that siblings provide critical support, especially during periods of family disruption. Research by McGuire and Shanahan (2010) (2) found that strong sibling bonds foster resilience, helping children cope with parental separation. Sibling ties offer continuity, emotional security, and a shared experience of family life, which can help mitigate the negative impact of divorce.

Case law reflects judicial recognition of these relationships. In Y and Z (Separation of siblings), (3) the court was tasked with determining whether siblings should remain together in adoption. The court emphasised the emotional importance of maintaining sibling contact, weighing this against the practical challenges of securing a joint placement. The judgment highlighted that sibling relationships play a crucial role in stability and well-being, especially when parental figures are absent.

Conversely, when siblings are separated due to custody arrangements, children may experience emotional distress, anxiety, and feelings of isolation. Many children who lose regular contact with their siblings struggle with trauma that compounds the effects of parental separation. In cases like Re C (A Child), (4) the court focused on whether the publication of a judgment should proceed and how this might affect the child involved. While the case did not address sibling contact specifically, it underscored how family court proceedings often balance competing interests, such as privacy and transparency, when making decisions that affect children’s well-being. This highlights the importance of protecting children’s emotional welfare, including issues like sibling bonds, which are often complicated by legal priorities.

Legal Framework Governing Children’s Rights

The Children Act 1989 establishes that a child’s welfare is the court’s paramount consideration in family law disputes. Section 1(1) of the Act mandates that courts make decisions based on the best interests of the child. To guide this process, Section 1(3) outlines a welfare checklist, which includes several key factors such as the child’s wishes and feelings (depending on their age and understanding), the likely effect of any change in circumstances, and the child’s relationships with family members. Although sibling relationships are not explicitly mentioned in the checklist, they can be considered under broader provisions related to the child’s emotional needs and relationships with significant people in their life. Specifically, Section 1(3)(f) refers to "any other person in relation," which may include siblings.

This legal framework allows courts to consider sibling bonds when determining a child’s welfare but leaves room for judicial discretion. As a result, sibling contact is not consistently prioritised across all cases. Nonetheless, in practice, the importance of maintaining sibling relationships is often recognised in care proceedings. The Children’s Commissioner for England, for example, has emphasised that when siblings are separated, it is crucial for them to be supported in maintaining regular contact to preserve these important relationships. This reflects a growing awareness of the role sibling ties play in promoting a child’s emotional well-being and stability.

Parental contact, by contrast, is given strong statutory emphasis under Section 11 of the Children and Families Act 2014. (5) This section promotes the continued involvement of both parents in a child’s life, unless such involvement would affect the child’s welfare. The lack of similar statutory provisions for sibling relationships leaves children vulnerable to separation from their siblings, even when maintaining these bonds may serve their best interests.

Challenges in Custody Decisions Involving Sibling Contact

Courts often face complex challenges when making custody decisions involving sibling contact. One key issue is the balancing of competing welfare considerations. In Re K (Children), (6) the court separated siblings due to the special needs of one child, which required a different caregiving arrangement. The court prioritised each child’s individual needs over maintaining the sibling relationship, illustrating the difficulties of achieving both.

High-conflict divorces further complicate efforts to preserve sibling contact. Parents may use sibling relationships as leverage in disputes, prioritising their own custody claims over the child’s relationships with their siblings. In Re C (Children), (7) the court dealt with a complex custody dispute involving international abduction, where the children had conflicting preferences regarding their place of residence. While this case focused on habitual residence and the application of the Hague Convention, it highlighted the broader challenge courts face when balancing children’s expressed wishes, logistical challenges, and emotional well-being in custody decisions. In such situations, courts must carefully weigh these factors to minimise emotional harm while respecting the best interests of the children involved.

The Role of Cafcass and Policies in Protecting Sibling Relationships

Cafcass (Children and Family Court Advisory and Support Service) plays a central role in safeguarding children’s welfare during family court proceedings. Cafcass officers assess the child’s circumstances and provide recommendations to the court. While their guidelines emphasise the importance of relationships with family members, they do not specifically prioritise sibling contact. This gap reflects the broader limitations of family law in addressing sibling bonds.

By contrast, policies in care proceedings provide greater protection for sibling relationships. The Statutory Guidance on Adoption (2013) (8) issued by the Department for Education emphasises the importance of preserving sibling ties in foster care and adoption settings. Courts have applied these principles in cases like Y and Z (Separation of Siblings), where the court prioritised sibling contact, recognising its importance to the children’s emotional stability. However, these policies do not extend to private family law, creating a gap that leaves children in divorce cases with fewer safeguards for their sibling relationships.

Recommendations for Reform

To address the current gaps in legal protections for sibling relationships, several key reforms should be implemented. Firstly, the Children Act 1989 should be amended to include sibling relationships as a specific factor within the welfare checklist. This change would ensure that courts consistently give due consideration to the importance of maintaining these bonds when determining custody arrangements. Secondly, courts should be required to explicitly address sibling contact in child arrangements orders, similar to the emphasis on parental contact found in the Children and Families Act 2014. Additionally, it is essential to enhance the training and guidance provided to Cafcass officers and court-appointed guardians, ensuring that sibling relationships are prioritised in welfare assessments. Finally, the promotion of alternative dispute resolution (ADR) methods, such as mediation and collaborative law, could help resolve sibling contact disputes outside of court. By fostering cooperation and constructive dialogue, ADR can reduce adversarial conflict and ensure that decisions are guided by the best interests of the child.

Conclusion

Sibling relationships are vital to children’s emotional well-being, particularly during the upheaval of divorce. Although the legal framework in England and Wales emphasises the best interests of the child, it does not adequately prioritise sibling bonds. Case law and policies reveal inconsistencies in how these relationships are treated, leaving many children vulnerable to separation from their siblings.

Reforming the legal framework to explicitly recognise sibling relationships and strengthening guidance for practitioners would better align family law with the true spirit of the welfare principle. Ensuring that children’s rights to maintain sibling bonds are protected is essential for their emotional development and long-term well-being.

Footnotes

(1) Children Act 1989.

(2) McGuire, S. and Shanahan, L., 2010. Sibling experiences in diverse family contexts. Child Development Perspectives, 4(2), pp.72-79.

(3) Y and Z (Separation of siblings) [2020] EWFC B59.

(4) Re C (A Child) [2015] EWCA Civ 500.

(5) Children and Families Act 2014.

(6) Re K (Children) [2011] EWCA Civ 793.

(7) Re C (Children) [2018] UKSC 8.

(8) Department for Education. (2013). Statutory guidance on adoption: For local authorities, voluntary adoption agencies and adoption support agencies. London: Department for Education.

Bibliography

Children Act 1989

Children and Families Act 2014

Department for Education (2013) Statutory guidance on adoption: For local authorities, voluntary adoption agencies and adoption support agencies. London: Department for Education

McGuire, S. and Shanahan, L., 2010. Sibling experiences in diverse family contexts. Child Development Perspectives, 4(2), pp.72-79

Re C (A Child) [2015] EWCA Civ 500

Re C (Children) [2018] UKSC 8

Re K (Children) [2011] EWCA Civ 793

Y and Z (Separation of siblings) [2020] EWFC B59