Myth-busting: Arrangements for children following family separation – one size does not fit all!

Manders Law Senior Associate Christina Coker and Paralegal Nikita Mohindra explain why below.

We are frequently contacted by clients who want to “sense check” the child arrangements they have in mind post-separation before they embark on what can be a difficult discussion with their ex. From these discussions we have noted a popular misconception that there are hard and fast rules and a standard template which the court will apply if the parties can’t agree. This is the first myth to bust – there are no hard and fast rules. There are however some basic principles which should underpin all arrangements:

• It is important to encourage as much spending time as possible with both parents;
• All arrangements should be child focussed and in the best interests of your child;
• All arrangements should be aimed at promoting and safeguarding the child’s emotional and physical wellbeing, maintaining stability, and reassuring them in what are difficult family circumstances;
• One size doesn’t fit all – arrangements will depend on the specific circumstances and needs of the family;
• Arrangements should always take into account the age and needs of the child, their wishes and feelings, and other practicalities such as the parents’ work schedules, etc.

There should also be an acceptance by parents that family separation evolves over time and the needs of the family and children in the immediate aftermath of a separation may be different to their needs in the mid- to longer-term.

Naturally, on family separation your child will experience a whole host of emotions in the short-term (and sometimes beyond) including anger and sadness. They may have separation anxiety, divided loyalties, and problems at school. As parents you will also be experiencing very strong emotions as you try to come to terms with the breakdown of the family unit. This can sometimes make agreeing childcare and spending time arrangements difficult.

In this blog we explain some common arrangements which can be used as a starting point to create your own bespoke agreement and highlight the issues you need to consider. 

Interim or short-term arrangements

Separate households

In the immediate aftermath of family separation, agreeing sensible childcare arrangements should be a priority for both parents. Those arrangements will frequently depend on financial considerations. If your family has the financial means to physically separate immediately after ending the relationship you will be able to run two homes that allow the children to shuttle between the two households. In those circumstances child arrangements should be agreed as soon as possible in order to minimise disruption to the child’s routine. We discuss in more detail below what those arrangements might look like. But what are the pros and cons?

The pros of two households:

• The children are not exposed to a hostile and unpleasant home atmosphere, while the parents navigate the stresses of a formal separation;
• You avoid delaying the inevitable which may help the children come to terms with their new reality sooner rather than later.

The cons:

• Shuttling between two homes may be unnecessarily disruptive at a time when they are processing huge change in their lives, if there is some distance between the two locations.

A shared household

Many parents simply cannot afford the cost of running two separate households that could provide for the same standard of living for their children, while the long-term financial arrangements remain unresolved. This may mean that you and your ex have to continue living in the family home until such time as the family home has been sold, for example. This is far from ideal but for many families this is a reality.

The pros of a shared household:

• You and your ex are able to preserve your finances pending the final distribution of the family assets;
• In circumstances where you and your ex are on amicable terms this can provide some comfort and security to the children while they come to terms with the separation.

The cons:

• If you and your ex are not able to get along the children are likely to be negatively impacted by the hostility between you. This can lead to behavioural and other issues both at home and at school;
• It prolongs the inevitable adjustment that the children will have to make from living in one household to two separate households.

“Nesting” or “Birdnesting”

In recent years “nesting” arrangements have become more common. But what is nesting? This is an arrangement where the children remain living in the family home, and rather than the children moving between each parent’s respective new homes, the parents take it in turns to occupy the family home, spending time with the children when they are there. In England and Wales nesting is very much considered a short- to medium-term solution, and that was certainly the view of the Court of Appeal in A, B and C (Children: Nesting Arrangement) [2022] EWCA Civ 68. If you are considering a nesting arrangement, be realistic! It will only work where you and your ex are on good terms and there is still a great deal of trust and goodwill between you.

The pros of nesting:

• It enables the children to remain settled in the familiarity of the family home providing stability and consistency;
• You and your ex have the time to sort out your finances and consider your options before any long-term changes are introduced to the children;
• It enables both parents to remain fully involved in their children’s day to day routines and schooling.

The cons:

• It creates a sense of living in limbo and delays the family from fully moving on;
• It may give the children a false sense of security that you and your ex might get back together;
• You and your ex will still need another place to stay on those days when you are not caring for your children at the family home. For some this means paying for and running two or three homes;
• The arrangement requires a large amount of trust between you and your ex, and ground rules will need to be agreed, like what happens if one of you meets a new partner? Will they be allowed to stay over at the family home, etc?

Medium to long-term arrangements

Where there is no disagreement, or any disagreement can be easily resolved

Once you and your ex have worked out your medium- to long-term living arrangements, and are living in separate homes, you will need to agree on appropriate childcare arrangements. These are usually agreed informally (i.e. without a court order) between you and your ex, or with the assistance of a professional (i.e. a family mediator or solicitor). Many parents use a Parenting Plan template as a basic structure to help them to agree on arrangements and set out expectations and boundaries. CAFCASS and the National Association of Child Contact Centres (NACCC) provide templates on their website.  

Common arrangements

Spending time arrangements

The most common arrangement is where the child’s primary residence is with one parent and they spend time with the non-resident parent. There will be weekly or fortnightly overnight contact (usually on the weekends), and some additional midweek contact either direct or indirect (i.e. video or telephone calls) during term time. School holidays are often shared. There may also be separate arrangements for special family occasions like birthdays.

Just because this is the most common arrangement, it is not the inevitable outcome if the parties cannot agree and the court is asked to decide what is best for the child. Every case is fact specific.

When agreeing this type of arrangement remember that teenagers often like to have some control over the time they spend with the parent they are not living with, and the flexibility to spend time with friends and do activities they enjoy. 

‘Shared care’ arrangements

Shared care arrangements are schedules of allotted time, and can allow for the following:

• A 50/50 shared care arrangement between you and your ex;
• A schedule that does not necessarily divide the time by 50/50, but allows for set time of an agreed amount, between you and your ex.

If you and your ex cannot agree, or you have welfare concerns about your child spending time with your ex, the court should be asked to determine matters and make a Child Arrangements Order.

It is important to point out that the courts will only intervene in relation to the arrangements for a child where the parents cannot agree or there is a welfare concern. This is known as the ‘no order principle’.

Where there is a dispute or welfare concern

The law

The Children Act 1989 clearly sets out that a child has the right to know and be cared for by both his/her respective parents. Where children are separated from one or both of their parents, they have the right to maintain contact with the parent they are separated from, unless this is not in the best interests of the child due to concerns about the child’s welfare.

Remember that the court is concerned with the right of the child to have meaningful contact with each parent and not with the perceived “rights” of the parents.

If you find yourself in dispute with your ex, you may need to ask the court to make one of a number of orders available under section 8 of the Children Act 1989, including a Child Arrangements Order (previously known as residence and contact orders). Before you can make a court application you will need to attend a Mediation Information and Assessment Meeting (MIAM).

The welfare checklist (Section 1 of the Children Act 1989)

When the family court makes a decision on matters that will affect a child, paramount consideration is given to the child’s welfare. Section 1 of the Children Act 1989 contains the ‘Welfare Checklist’ which the court must consider when reaching a decision on cases involving children.

When asked to determine what the arrangements for a child should be the courts will consider the following:

1. The ascertainable wishes and feelings of the child concerned (this will depend on their age, maturity and understanding of the situation. The court will tend to place more weight on a child’s wishes and feelings from the age of 11 or 12 onwards);
2. The child’s physical, emotional, and educational needs;
3. The likely effect on the child if circumstances changed because of the court’s decision (the court will often want to make a decision that will cause the least disruption to a child’s life);
4. The child’s age, sex, backgrounds (cultural and religious) and any characteristics of the child which the court considers relevant;
5. Any harm the child has suffered or is at risk of suffering;
6. The capability of the child’s parents, and any other person in relation to whom the court considers to be relevant, to meet the child’s needs;
7. The range of powers available to the court under the Children Act 1989 in the proceedings in question.

Communication Tools

One of the stumbling blocks to agreeing and maintaining consistent childcare arrangements is the inability to communicate effectively and respectfully with your ex. Good communication is fundamental to the success of the arrangements (whether agreed informally or court-ordered), but in reality it is a bugbear for many co-parents.   

Communicating with your ex may not always be as straightforward or as comfortable as you’d like. There are various communication tools and apps on the market that are accessible and provide various levels of assistance. They can help you communicate better with your ex, especially if you find it hard to speak to each other.

For example, the OurFamilyWizard App can provide you with lots of useful tools to help you co-parent your child. It’s a collaborative platform which allows a safe method to manage all your communication. They have built-in features such as:

• Printable records of communication
• An expenses log to help you manage all child-related expenses
• A calendar to help you keep on top of your child’s schedule
• A feature to propose assigned duties between you and your ex
• A message board
• Yes/no options regarding your shared care arrangements
• Staying connected with your child, even when apart
• A “tonometer” feature, which allows both you and your ex to keep written communication in line with a comfortable tone.

Child maintenance

You should be aware that child arrangements are taken into consideration when calculating child maintenance.

When the Child Maintenance Service calculates the amount payable, they will reduce the allowance payable to the resident parent by the number of overnight stays that the child spends with the non-resident parent. You can ascertain the financial impact of the number of overnights stays your child has with the non-resident parent by referring to the Child Maintenance calculator here.

In the case of a shared care arrangement where there is a 50/50 split of the time, this may even cancel out any child maintenance altogether.

Top Tips

• Be prepared to compromise
• Accept that your child has the right to spend time with both parents
• Don’t make an application to the court your first option – consider mediation and negotiation supported by your solicitor
• Remember that there are tools available to minimise disagreements
• Consider whether you might benefit from the support of a professional family therapist, while you and your ex work things out
• Remember that you cannot force your ex to spend time or more time with their child/children if they don’t want to, and this can cause hurt and friction
• Always seek professional legal advice if you are unsure of your position
• Remember that if you can’t agree arrangements or there are welfare concerns regarding your child, the court can make an order that sets out what those arrangements should be.

For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.

Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position and is provided for information only. It is not an endorsement of any product or service provider.