Publish date

8 December 2020

Access arrangements at Christmas

Christmas can be a wonderful time of the year, a time to spend with family, but it’s a particularly difficult time of the year to be alone, and can also be a very difficult time to navigate family relationships. For those who have children together, but have separated, it can be incredibly emotive trying to agree who the children spend Christmas with.

That is perhaps more true than ever this year, where the ongoing pandemic and resulting lockdowns are putting increasing pressure on family dynamics during the festive period. There are also added complications of self-isolation periods and vulnerable family members that will impact on one parent’s ability or willingness to agree to certain arrangements.

It is a sensible idea to try and agree those arrangements as far in advance as possible. In most cases, parents are able to reach that agreement between them using general arrangements that the children will spend Christmas Day on alternating years with each parent.

If it is not possible to reach an agreement about those arrangements, then parents can consider getting help to try and reach a compromise that suits the children and can be accepted by them both.

The parents can attend mediation, with a trained mediator to try and reach that agreement. The mediator will try to help discussions to take place in a constructive way, so that both parents feel their views have been considered and that they can then come to an agreement. There needs to be an element of trust as that agreement is not binding, but for many people, having taken the time to reach an agreement, they are able to go forward on that basis.

It is also possible to involve children in mediation, this is dependent on contacting a mediator who is specifically trained and that the children are old enough to engage in the process. This is helpful with older children who may want more of a say in the arrangements, but feel less disloyal talking about their wishes and feelings to an independent third party.

If the parents feel they need a little more support and guidance, they might choose to enter into the collaborative law process. Both parents would instruct collaboratively trained solicitors and all discussions will take place in the presence of all parties. The unusual part of the process is that lawyers work together, wherever possible, to help the parents find a compromise. Having the discussions face to face can be very beneficial as there is less room for misinterpretation and many things can be said openly. Family therapists can also be involved in this process.

For some parents, having direct face to face communications is too difficult or not appropriate.  In those circumstances they can instruct solicitors to try and negotiate on their behalf, either by letter or phone, to try and find a compromise.

If it isn’t possible to find a way to reach an agreement, or if the matter becomes urgent because Christmas is fast approaching, one of the parents can make an application to the court for an urgent interim hearing concerning arrangements over Christmas. This difficulty is that this is reliant on the court having availability and the court may then need input from other third parties, such as Cafcass, to consider what is best for the children and how Christmas arrangements should work. The outcome will be a court order, which is necessary for some parents as there is no existing trust and they need to know that there will be consequences if the order isn’t complied with.

An alternative to court proceedings is private arbitration.  This is more costly, as it involves paying an arbitrator as well as for representation, but the benefit is that the process can be much quicker and arranged at the parents’ convenience, subject to the arbitrator’s availability.

When there are difficulties in discussing arrangements it is advisable to take legal advice from a Resolution trained solicitor earlier rather than later. The different routes of resolution can then be addressed quickly.

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