At this time of year, we are often contacted by separated or divorced couples regarding arrangements for their children over Christmas and New Year. Separated couples who have children should start discussing their childcare arrangements for the festive period now so that everyone can agree on a plan.

If plans are left unformalized or discussions start too late, this can often lead to uncertainty and distress for everyone, including the children. Obviously, the needs of the children are paramount, especially as Christmas can be a particularly special time. But it is also important that the children spend some quality time with each parent, and as responsible parents you will both have to accept that there will have to be some compromises and flexibility, to ensure that the needs of the children, at the time of year that is most important to them, are met.

Consider the practicalities and the needs of your children

Whilst it is understandable that both parents may want to be with their children over the festive period it is best to have a frank discussion about how you can both share your children’s time. Communication is key and a mutual desire to negotiate a fair, practical agreement over the festive season will often be the best approach by far. Consider the practicalities of location, travel, weather, half-siblings, extended family relatives and Christmas logistics of meals and present giving, which may all affect any existing arrangements.

If this is your first year as a separated couple it can be hard to know what arrangements will work best. The special days of Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve/Day are often alternated/split between parents annually. Or if you live close together you could arrange a handover mid-way through the day.

Whilst you may wish to ask your children what they would like to do over the festive period, we do not advise asking children to choose which parent they would like to spend time with, as that can often them leave them feeling pressured, guilty or torn to make such a ‘grown up’ decision and undoubtedly, they will be anxious about not hurting anyone’s feelings.

If an agreement is reached, put the details in writing e.g. by email, so that the plans are clear and there are no crossed wires. It is also okay to keep plans flexible to allow for changes in circumstance but there should be a degree of certainty that enables everyone to enjoy the run up to Christmas without having to have any difficult conversations.

We can’t agree plans for Christmas – what should I do?

If you can’t agree, a third party such as a solicitor can help take the emotion out of these conversations between you and your ex-partner making it easier to reach an agreement and formalise it with them or their solicitor. Or you can use the services of a mediator who can arrange a meeting with your former partner to agree how childcare over the Christmas holidays will be split. In mediation, the arrangements you settle upon will then be recorded in a Memorandum of Understanding which will clearly set out what has been agreed.

Both of these options are usually quicker and cheaper than going to court and in fact you can’t bring an application to the court unless you’ve explored mediation as an option first. If mediation is not a practical option but you are looking for a more binding solution, your solicitor can arrange arbitration which is a privately-funded option whereby you can choose your judge and the date of your arbitration.

If mediation or arbitration are not appropriate, you will need to issue an application at court. If the court agrees that it is urgent, hearings normally take place within six weeks of an application to resolve child arrangements or specific issues. So, if not already underway, you will be cutting it fine for Christmas, especially as there is already a huge backlog of cases so your listing may not actually be heard for 8-12 weeks which would make the whole exercise pointless.

You may already have a Child Arrangements Order in place that does not set out arrangements for Christmas, and if you cannot agree, you can make an application to vary the Child Arrangements Order so Christmas arrangements are set out in an Order for the future.

Travelling abroad with children at Christmas

Now that many of the Covid-19 travel restrictions have been relaxed, a trip abroad for Christmas is once again an option. However, for separated parents wanting foreign travel with their children, there is more to think about than passports and flight bookings.

In order to take a child abroad, a parent must have the consent of all persons with parental responsibility, unless they have a court order giving them permission. Under English law, mothers automatically have parental responsibility and fathers have parental responsibility if they were married to the mother at the time of the birth or (for children born after 1 December 2003) they are registered on the birth certificate. Fathers can also acquire parental responsibility by way of a parental responsibility agreement, or court order.

If you are not the only one with parental responsibility and you travel abroad with a child without the other’s consent then this constitutes child abduction and is a criminal offence, so it is important to ensure you have their consent before you travel and it is sensible to get this in writing. It is becoming increasingly common for parents travelling alone with the child/ren to be questioned at border control to ensure they have the necessary consents.

Make the children the highest priority

It is important whatever arrangements you agree on, it is important that you both stick to them and keep the Christmas spirit as positive as possible for your children. Plan early to give yourself and your family the best opportunity for a Merry Christmas. If handled sensitively, children adjust quickly and look forward to the opportunity to share their Christmas holiday celebrations with both parts of their family. And if your children are believers, make sure to reassure them that Santa also knows the plan and will find them, wherever they are spending Christmas.

How we can help

We can advise you on child arrangements whether you are seeking our advice to reach an agreement with the other parent or find yourself making or defending a Court application, our experienced Family & Divorce team can guide and support you through the whole process.

For a confidential discussion about the divorce procedure, please contact Richard Rodway in our Henley office or Julia Drury in our Reading office, both of whom will be happy to have an initial conversation with you over the phone/ video about the best divorce route for you.