By Sangeeta Kohli, Family Law solicitor at Irwin Mitchell

It’s the most wonderful time of the year… but not necessarily for separated families. It can often be the most stressful time of the year. What should be a fun-filled time of laughter and joy, shared with family and friends can often be tainted by disagreements about contact arrangements and other disputes.

The primary consideration of the court and, of course, the parents will always be the best interests of the children. The difficulty is that parents can often disagree as to what is in the best interests of the children. Where there is a Child Arrangements Order in place, this will often deal with the arrangements over the holiday period and specifically Christmas Day.

Where the arrangements are not set out in an order, the parties are required to reach an agreement directly between themselves. It is important to try and finalise the arrangements as early as possible, meaning that any specific plans for the holiday period can be dealt with in advance. In addition, if the arrangements really cannot be agreed and there is a need for court involvement, it is usually better to make an application sooner rather than later. According to figures released by CAFCASS, the number of private law children cases in October 2020 was similar to that in October 2019. Nevertheless, the courts still face listing difficulties at this unprecedented time, and this can cause delays in some applications being listed for a hearing.

Most parties will want to avoid the need for court involvement, where possible. It is often easier said than done but the following tips can act as a helpful guide:

Remember that the children come first. They are entitled to have a meaningful   relationship with both parents (subject to there being no issues of safeguarding) and should enjoy quality time over the festive period with both parents. Whilst the separation may still be raw for the parents, any ill-feelings towards one another or discomfort in communicating should be put aside for the children

On that note, communication is key. Open lines of communication should be held between the parties and the children. The children should be permitted to share their feeling and wishes. However, both parties should be able to properly explain to the children that their wishes will, of course, be taken into consideration but that they will not have the final say. 

The children should not feel anxious about expressing their love and affection towards the other parent or expressing a desire to want to spend time with them. Neither parent should ask the children to make the decision as to contact arrangements, but if they are old enough, it may be helpful to discuss with them what traditions they would like to continue or what they enjoy doing with each parent.

The parents should also be able to communicate in a respectful and reasonable manner. This can be difficult, especially in circumstances where the separation may be recent. The parties may want to consider how they are able to best communicate with one another – this may be in person, on the telephone, by email, text message or even through an app. Whichever method is most suitable, it should be used to keep an open dialogue as to the child arrangements (both in the long-term and particularly during the upcoming Christmas period). Focus the discussions on the arrangements and any other issues that need to be resolved, as this will help to ensure the conversations are productive.

In all circumstances, and not just when dealing with the Christmas arrangements, the children should never be exposed to adult conflict or hear their parents speaking in a derogatory manner about the other.

Compromises will need to be made on both sides. In an ideal world, both parents would want to spend the entire day with their children every single year. Both parties should enter discussions with the mindset that there will have to be a compromise. Whether this means that the parties agree to alternate Christmas day arrangements (i.e. with one parent one year and the other the next) or sharing the day (i.e. Christmas Eve and morning with one parent and afternoon and Boxing Day with the other), there will need to be some concessions.

The final arrangement will depend upon the parties’ circumstances, to include location and wider family arrangements (though we appreciate that it is not yet clear what the Government guidance surrounding Covid-19 will yet entail). However, it is an exciting day for the children and they will not want to spend hours on end travelling. Where the parents live a long distance from one another, it may be worth considering the alternate year arrangement, particularly whilst the children are still young. There is no “one size fits all” answer and each family will have their own particular set of circumstances to deal with.

Regardless of the agreement reached, allow the children to speak with the other parent and extended family, without fear or upsetting the parent that they are with. If alternate year arrangements have been agreed, ensure that the children are encouraged to call the other parent and promote that relationship. A quick call to their other parent and external family can help to build a positive relationship between the parties and shows the children that they are allowed to have that relationship and that their parents can work together.  

Stability, consistency and routine is imperative for the children. Once arrangements have been agreed, these should be conveyed to the children and unless an emergency arises, they should not be changed. The children will appreciate the stability of knowing where they will be and when and should feel secure in those arrangements.

In terms of other practicalities, not so much the legal side of matters, another point of contention can be gifts. Parents should not try to “out-do” and “one-up” one another and you don’t want the situation where the children end up with two of the same gift. Speak about gifts beforehand and try to work together to make the day more enjoyable for all.

Finally – this is a time for happiness and joy! After what has been a turbulent year for most, the children are having a break from school and will no doubt be excited. Always remember that they will want to enjoy this time with their families. So get the tree decorated, maybe even make a gingerbread house, but make sure Santa has his milk and cookies and make the most of it!

Should you require any guidance or support from a legal perspective ahead of the festive period, then Irwin Mitchell has a wealth of experienced family law practitioners who will be able to assist.