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Separated families and the Christmas period

Reasons to choose Wilson Browne

With summer on its way out, our thoughts generally turn to the next holiday; the festive Christmas period.

It’s at this point problems can arise when separated parents are making arrangements for their children. Some may live far apart from each other. Some may wish to go abroad over the Christmas period to visit family. Family Solicitor Joe O’Brien advises the best approach to ensure the whole family enjoys the festive fun.

As a starting point, parents should try and reach agreement between themselves before engaging with the services of a solicitor. Can the time be split fairly? Is it practical for Christmas Day to be split so the children spend time with both parents? Can an arrangement be reached whereby the children spend the first half of the school holiday with one parent and the second half with the other? If one parent wishes to go away, can travel arrangements be made so that the child still spends plenty of time with the non-travelling parent?

Of course, reaching agreement requires both parents to be flexible and this is not always the case. When I am instructed to deal with such disputes, I always advise clients to consider mediation. Sitting down with an independent third party with an in depth knowledge of family law can help parents to focus on what would be in a child’s best interests. Reaching agreement in mediation also means avoiding the cost and stress of court proceedings.

There are cases where resolution directly or in mediation simply isn’t possible. Parents have the option of making an application to court for a Child Arrangements Order (CAO). Commonly, a CAO will set out contact arrangements for the Christmas holidays as well as the arrangements for the rest of the year. In addition to a CAO, it may be that an application is made for a Specific Issue Order. As the name suggests, a Specific Issue Order is one where the court is invited to decide on a specific issue which may be a one off event. As a festive example, last year, I successfully applied for a Specific Issue Order permitting the parental grandparents to take their grandchild to Lapland.

When considering an application, the child’s welfare is always the court’s paramount consideration, taking into account the statutory welfare checklist contained in the Children Act 1989, specifically:

• the wishes and feelings of the child concerned;
• the child’s physical, emotional and educational needs;
• the likely effect on the child if circumstances changed as a result of the court’s decision;
• the child’s age, sex, background and any other characteristics that will be relevant to the court’s decision;
• any harm the child has suffered or may be at risk of suffering;
• the capability of the child’s parents (or other relevant people) in meeting the child’s needs; and
• the powers available to the court.

No case is the same and some of these considerations will be more relevant than others depending on the circumstances. The court must also be satisfied that making an order is better for the child than not making any order at all. In the current climate, the court will have regard to the impact of Covid-19 restrictions when making any order.

If you’d like to speak to an experienced family solicitor call 0800 088 6004.