Caught in the crossfire: the hidden risks of treating children during family breakdown

You get the call. Mum says she and Dad have just separated. It’s all amicable, she assures you, but their daughter is struggling, and could you please squeeze her in for a few sessions? Dad hasn’t been all that involved anyway. She just wants her daughter to get some support.

It feels safe to say yes. It might even feel safe to go ahead with Dad’s consent, given he hasn’t been involved so far. But the decision you make here will have lasting effects, for the child and for you professionally.

Psychologists working with children from separated families walk a professional tightrope. On one side is our instinct to help: a parent tells us their child is distressed, and we feel the pull. On the other is an ethical minefield. Proceed without the clear consent of both parents and it is only a matter of time before you get caught out.

A few years ago, colleagues and I published a decision tree for these cases in InPsych, and it is still widely used, because it captures how complicated consent and communication get. But I want to go a step further. In the immediate aftermath of a separation, when conflict is high and legal clarity is low, providing safe and effective treatment to a child may not just be difficult. It may be impossible.

No order, no agreement, no safe way forward

Without a court order, we fall back on the principle that both parents with parental responsibility have an equal say in decisions about the child’s treatment. That is right in principle. In practice, it means even starting treatment can require delicate negotiations between two people who may not be speaking to each other.

Perhaps Mum alleges family violence and says it would be unsafe to involve Dad. Perhaps Dad alleges that Mum is turning the child against him, and that therapy is reinforcing a false story of harm. Our legal system is adversarial. Unless the parents reach a mediated agreement, you can be sure both of them, with their lawyers, will use whatever is at their disposal when it comes to time with the children, decision-making and money.

Your notes, your opinions and your letters will all be read by lawyers who are expert at reading between the lines.

Notes as weapons

A child’s file is not confidential from their parents in the way an adult’s is. In most cases, either parent with parental responsibility can ask to see it, sensitive disclosures about the other parent included. In an intact family that risk is remote. In a high-conflict separation, it is close to a certainty.

Subpoenas are now routine in family law. A senior family lawyer told me recently that the odds of finding something careless in a psychologist’s notes are so high that it would be virtually negligent not to subpoena them. Sit with that for a moment: our notes are known in the legal community to be loose often enough that it is worth a look, just in case.

A throwaway line like “write things down so Dad remembers” seems harmless when you write it. A lawyer reads it and asks: what else does Dad forget? School pick-ups? Medication? Meals?

Notes are there to help you deliver a good service. They were never designed to be searched for the worst possible interpretation. But here we are.

Ask these questions before you say yes

Before accepting a referral from a newly separated family, ask yourself:

• Do both parents consent? If not, why not?
• Is that consent documented and current?
• Do both parents understand their rights to access the records?
• Am I prepared to hear my notes read aloud in court?

Supervision is essential here, and so is legal advice. Neither removes the risk. They help you weigh it.

Sometimes “proceed with caution” isn’t enough. In many of these cases the safest course, ethically, legally and clinically, is to wait for a clear agreement or a court order. That isn’t ideal for the child. But it is often the only way to protect everyone involved, including you.

A word to the legal profession

If we want children to get timely psychological help when their family breaks down, that help needs some protection from the litigation going on around it. Some jurisdictions already protect particular kinds of counselling records. I’d argue a child’s therapy notes in family law matters deserve similar protection: not to hide wrongdoing, but to stop therapy rooms becoming court exhibits.

We already have too few psychologists willing to work with children. If routine subpoenas keep making this work unsafe, we won’t just lose therapists. We’ll lose the chance to help the children who need us most.

For more on what belongs in a file in the first place, see Therapy progress notes: a treasure trove of data for all the wrong people, and on keeping consent current, Do you need to update client consent every 12 months?