Family mediator Michelle Bettell explains the best courses of action for separated families trying find a solution for child access at Christmas time.
The Christmas holiday period is usually a time for families to get together and, for most, is a time which is focussed on the enjoyment of children. However, for families and individuals who have experienced a divorce or separation, Christmas can be a worrisome time, especially where access to children is concerned and coupled with the added pressure of wanting to ensure that Christmas remains a special time.
Whilst there is no ‘right’ or ‘wrong’ way to approach child arrangements at Christmas time with each family situation being unique, there are typical ways that separated couples could agree to manage child access at this time of year which can act as a guide if you and the other parent are struggling to find a solution.
Above all, a child-focused approach to parental access at Christmas should always be taken and is something our family lawyers always aim to achieve, whether through mediation or, if absolutely necessary, through the courts.
In this article, we will cover the best courses of action for families at a number of different stages of separation, from those who have already obtained a court order, to those who have recently separated and are trying find the best solution for their children at Christmas time.
If you have already obtained a child arrangements order, it is possible that Christmas child arrangements will have been covered. It is not uncommon that Christmas child access is based on alternating the years with each parent. However, this may not always be the case and it is worth checking the details of your child arrangements order before making the assumption that Christmas access arrangements are indeed covered.
When the court is considering whether or not to make one or more orders under Children Act 1989 with respect to a child, it must not make the order unless it considers that doing so would be better for the child than making no order at all. Child arrangements orders will only include arrangements in respect of which there has been a parental dispute but the court order can nevertheless record agreements reached alongside a substantive order that is being made, and that might relate to Christmas arrangements or some other child arrangement planning that is incidental to, or part of, an order.
In the event that your child arrangements order makes no provision for arrangements over Christmas, in the first instance efforts should be made to agree those with the other parent, preferably well in advance. In the event that this remains a dispute, you may need to consider the necessity of applying to vary the child arrangements to determine Christmas arrangements and include them within the order.
Although it is useful to discuss what is ‘typical’ for separated families at this time of year, ultimately it is your child’s right to have a relationship with both parents and to see both over any holiday period, whether that be the Christmas holidays, Easter or any other, provided there are no safeguarding issues.
If we were to consider ‘typical’ child access arrangements over Christmas, it is not uncommon for the court to ring fence the key days over the period (Christmas Eve, Christmas Day and Boxing Day).
Many parents will request to have access to their children over these days as they want to wake up with them on Christmas Day, and the courts do generally accept that this is an important and reasonable consideration.
With this being the case, alternating the years that a child would spend these ‘key days’ with each parent will be the most likely outcome. It is always of the upmost importance to approach this process from the perspective of the child and to work on the assumption that they will want to spend time with both of their parents.
If alternating the years for parental access over Christmas is not possible, it is not uncommon for various arrangements to be discussed which might involve the child spending partial time with each parent with handover times forming an important part of this compromise.
Of course, there will be geographical considerations to make here as it would be both unfair on the child and undesirable for one or both parents to be travelling significant distances over the Christmas period.
How do I fix child contact arrangements for Christmas when the other parent and I don’t agree?
If you are reading this at the time of publishing [25 November 2021] and you are in a dispute over a child arrangements order that doesn’t include Christmas, it is unlikely that the court will be able to deal with this dispute for the forthcoming Christmas. Upon issue of any court application issued under Children Act 1989, unless classified as ‘urgent’, there will usually be at least two months before an initial directions hearing date is listed at which no final decision is able to be made.
However, this does not mean it is too late to seek alternative routes to resolution as this is certainly something which can be resolved outside of the court, either through amicable discussions between you and the other parent or with the assistance of an accredited family lawyer mediator. In fact, prior to any non-urgent application, the protocol provides that both parents attend a Mediation Information and Assessment Meeting (MIAM) during which the accredited family lawyer mediator will explain all dispute resolution options available.
Mediation is the preferred option to assist with the resolution of disputes as it allows for disagreements to be dealt with swiftly and in a cost-effective manner when compared to the court alternative.
Child arrangements do vary from family to family, and it is certainly not always the case that the children of separated couples exclusively live with their mothers. However, in the circumstance that a child does live with their mother, what considerations should be in place for fathers at Christmas time?
Fathers’ child access rights at Christmas are often a concern for separated dads and disputes can arise unless agreements and arrangements are made explicit at the earliest possible point.
If you are a father and are uncertain as to your rights at this time of year (or any other time), it is important to remember that if both you and the child’s mother share parental responsibility, and there are no safeguarding issues, then it is the child’s right to spend time with you both. It should not always be assumed that the parent with whom the child spends the majority of their time is entitled to more time over Christmas than the other.
Where the breach of an existing child arrangements order occurs, this is a serious matter and cannot be rectified immediately. The breaching of an order is a contempt of court and is a punishable offence. In the event that a child arrangements cannot be complied with then the non-compliant party should be considering whether a variation to that order needs to be made.
In the event that the terms of a child arrangements order is not being complied with and this issue cannot be rectified between the parents themselves or at mediation, the compliant party may need to consider making an application to the court to enforce the order that is in place explaining the breach that has occurred. At this time, that parent may also want to consider whether or not it is necessary to vary the existing order to avoid further breaches.
Assuming that both you and the other parent share parental responsibility and are in agreement, taking your child out of the legal jurisdiction for Christmas is acceptable.
A mother automatically has parental responsibilty for her child from birth. A father usually has parental responsibility if he’s either:
Neither parent can remove the children from the jurisdiction in the absence of the consent of all other persons who share parental responsibility. This is unless a live with order has been made, in which case the parent in whose favour that order is made can remove the child without consent for up to 4 weeks.
If you and the other parent are struggling to reach an agreement in respect of this coming Christmas, an interim arrangement could be utilised. Interim arrangements can be facilitated by an accredited family lawyer mediator in the event that you cannot agree that between you. More permanent arrangements, if different can then be considered for subsequent years.
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