It's the most wonderful time of the year…or is it? Covid, Christmas, Court backlogs and navigating Child Arrangements as a Separated Parent.
Whilst it may still be November (just), it seems that one positive of 2020 is that the usual rules and timeframes around Christmas do not apply. The decorations are going up across the nation, the mince pies are proudly out on display in the supermarkets (hoorah), and recent government announcements mean that even lockdown can't put a dampener on our collective Christmas spirit.
However, If you're a separated parent you'll know better than most that Christmas can be a tumultuous time of year. The pressure of navigating emotionally loaded and sometimes thorny discussions with your ex-partner whilst simultaneously attempting to create the best possible experience for the children can be extremely stressful. Throw COVID-19, social distancing measures and limits on the number of households that are allowed to mix and Christmas can leave you feeling more "Bah Humbug!" and less "I wish it could be Christmas every day"!
So how should separated parents attempt to navigate this? And are the Courts the best place to decide such issues?
It should be noted that Court is always something to be seen as a forum of last resort but this is particularly so in the realm of child arrangement disputes. The Court takes a non-interventionist approach, as it recognises that parents are best placed to decide what is in their children's best interests.
This means the Court will only step in if it is absolutely necessary, or the parents have referred the matter to the Court as they simply cannot agree on their arrangements.
However in order for the parties to reach an agreement, there has to be a genuine desire on the part of both parties to resolve this amicably. This will naturally entail a degree of compromise, as both parents will likely want to enjoy the maximum time possible with their children and may have events or relatives they would like their children to see provided they are part of their "bubble" (or "bauble" which is a term I very much hope will catch on).
It will also be important for both parties to be fair. To help achieve this, it is often helpful for parents to take a step back and reframe any thoughts or discussions in terms of what is best for the children, and what their wishes and feelings are.
To avoid confusion (and disputes!), it can be helpful to put any agreed arrangements in writing such as via email or text messages. Many parents find having a shared online calendar to be really beneficial, and children can also benefit from a calendar at home which clearly sets out when they are to spend time with each parent.
What does a typical Christmas arrangement look like?
There really is no "one-size fits all" approach to child arrangements at Christmas. However it is typically considered fair for the special days of Christmas (Christmas Eve, Christmas Day, and Boxing Day) to be shared between parents.
Some parents choose to alternate say Christmas Eve and Christmas morning one year, and then have Christmas Day and Boxing Day the next. However the ability to share Christmas day will likely depend on the proximity of the parents' respective houses. Others split Christmas and New Year, or alternate these holidays.
It really is for the parents to decide what works best for them whilst always keeping in mind that the paramount and overarching priority is that of the child's welfare.
It is also really important to remember that if there is an existing agreement or Court Order in place setting out how Christmas should be spent, the pandemic does not change the spirit of that agreement.
Children are allowed to move between homes regardless of lockdown rules and the Court has taken a dim view of parents who appear to use the pandemic as a method of preventing contact. If there are genuine concerns of shielding or the safety of the child, then the parents should at the very least facilitate indirect contact (e.g. via facetime, whatsapp, zoom, telephone etc.)
However, it is well-established that indirect contact, whilst better than no contact, is not a substitute for a child having real and meaningful time spent with their parents, especially at Christmas.
What if we really can't agree?
If the parents really can't agree then the first step may be to try mediation. Not least because this is a prerequisite for bringing a children application to the Court, but also because it can be a more conciliatory way of reaching an agreement. Further the current court backlog means this may be a much quicker option in the present circumstances.
If mediation does not work or is not appropriate, you will need to issue an application in the Family Court. However do keep in mind that the pandemic has led to a huge backlog of cases, meaning a case may not be heard for 8 to 12 weeks. This is likely as a result not only of the backlog of cases, but also due to the amount of cases being issued as it was reported applications for private children proceedings are up at least 540 applications on the same period for last year.
Whilst parents who wish to bring an application will need to act quickly and issue an application now, there is no guarantee that it will be heard in time.
If you require any assistance or advice on child contact arrangements, or any of the issues discussed above, please do not hesitate to contact the Family Team.