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It's Christmas, all over... again

View profile for David Lillywhite
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We are approaching the time of the year when parents should be considering and trying to agree the arrangements for their children over the Christmas holidays.

December can be stressful at the best of times, especially with the ever-present pressure to have the ‘perfect’ Christmas (it can help to steer clear of social media, where it is all too easy to confuse a highlight reel for the whole story).

The pandemic is by no means over, but many families will be looking forward to a slightly more normal festive period. Getting out ahead of this issue (i.e. now!) is going to be critical. The closer you get to the school holidays, the more fraught any discussions are going to be and the more uncertain the arrangements are, the more unsettled the children will feel.

The law

The usual approach of the court is that there should be ‘no order’, which means that the parents are left to their own devices to work out what the appropriate arrangements should be. They can do this by looking at what the court refers to as ‘the welfare checklist’

These are:

  • The wishes and feelings of your child (considered in the light of their age and understanding);
  • Your child's physical, emotional and educational needs;
  • The likely effect on them of any change in their circumstances;
  • Their age, sex, background and any of their characteristics that the court considers relevant;
  • Any harm which they have suffered or are at risk of suffering;
  • How capable you and the other parent (and any other person the court considers relevant) are in meeting their needs;
  • The range of powers available to the court to resolve the situation.

The children’s ascertainable wishes and feelings (what they will really want) will become increasingly important as they get older. As they reach maturity in their teenage years, this will be the determinative factor.

Where do I start and when?

The first rule, therefore, in terms of making holiday arrangements is to think about what will work for the children and in the case of older children, what they will want. Most children will not want to be put in a position where they will have to choose between their parents.

How should I divide the time?

Usually the Christmas holidays are three or sometimes four weeks, in the case of private schools. The Christmas break itself falls within the middle of the holiday period. One approach, therefore, is to simply divide the holiday period into two blocks, with the handover happening during the Christmas period. This means that one parent spends 23 and 24 December with the children (and the anticipation of Christmas Day and the whole of Christmas Eve) and the other parent does so from halfway through 25th onwards and through until the end of the holiday including New Year’s Eve. The parents would then alternate so that the following year they swap around.

A second approach, which might be better with younger children (where they will want to spend less time away from the parent with whom they are used to spending most of their time) would be to alternate each week and divide the Christmas week separately, so that each parent gets to spend some time with the children over this period.

A further alternative, if parents live far apart, is to alternate the entire Christmas period. There might be the opportunity to involve the co-parent over Zoom or Skype calls at particular times to ensure they still feel part of the occasion. Parents are often desperate to share in what can be a very special time for their children but forget how quickly January rolls around and they can start looking forward to next Christmas.

What’s the solution?

The bottom line is there is no right answer to this particular conundrum. Christmas is a difficult time for separated parents and tensions can run high. If you can, start with a conversation with your co-parent as soon as you are able. If that’s not possible, arrange for your lawyers to speak (ideally over the telephone to foster open lines of dialogue) or meet with a mediator ahead of time so that there are no difficult discussions happening in the run up to the school break. Considering there may be a range of Christmas activities, concerts and Nativity plays to attend, the sooner you do this the better. If the relationship with your former partner is particularly difficult, it may be sensible to arrange to attend separate events.

What else should I consider?

A further area of contention might be Christmas presents. Part of the discussion can be around who is buying what present for who and where and when these will be delivered. It is not unusual for children of separated parents to celebrate two Christmases – to have a ‘pre-Christmas’ with one parent and then to celebrate the actual day with another. Of course, the gold standard is for the parents to come together on Christmas Day but for understandable reasons that is not always possible.

What about Covid?

The coronavirus pandemic wreaked havoc with schedules and routines last year and at the time of writing there are no restrictions for December. However, if experience has taught us anything this past year, we should be ready to adapt if this changes.

Parents should plan to be responsive and proactive. They need to think carefully if they are going to unilaterally deviate from an existing order or agreement. If the court’s assistance is required, then the question will be asked whether that parent acted “reasonably and sensibly” in light of the advice at the time. During the pandemic, the President of the Family Division provided very useful guidance for parents in March 2020, recommending that they communicate any worries but also think about solutions too.

If the temperature of the discussion seems to be rising, a good rule of thumb generally is to imagine a judge is reading all those emails and text messages. Do not send in haste. Step back and think about what that correspondence is going to achieve and what you and your co-parent are working towards. How is what you have written going to help with that?

What about foreign trips?

Last year there were also greater restrictions on foreign travel owing to the need to self-isolate. The traffic-light system has since been abandoned in favour of a go/no-go approach and the first point of reference should be the website which also sets out the additional testing requirements that travellers will also have to take into account and arrange.

If there is to be foreign travel then the details should be provided to the other parent well in advance (for example: flight times; accommodation; emergency contact numbers) and the discussion had around whether it is safe to travel and the impact that it might have on the other co-parent’s family arrangements.