Christmas is coming

Now that December is here, family lawyers will be bracing themselves for an annual family law tradition; the Christmas contact dispute.

It is very common at this time of year for separated parents to fall out about how their children will spend time with them during Yuletide. Solicitors will often receive a phone call or email from an unhappy parent, who complains that the children are not going to be made available by their ex over the Christmas period. These parents will often be seeking advice about how they can apply to the Family Court for an order setting out how contact will take place during the festive season.

So, what can you do if your ex suddenly tells you that you’re not going to see your children over Christmas? Should you apply to the court for an order?

The answer is that you’ve probably left it too late. There is virtually no chance of the court being able to hear your application at such short notice. You will be lucky to get the first hearing dispute resolution before the spring.

Once upon a time, when the court was far better funded and legal aid was widely available to people on low incomes, the court had the time and resources to deal with these disputes at very short notice. It would find court time into which it could squeeze a brief hearing to resolve these disputes. My local court would often deal with emergency applications at 10 am and the resident circuit judge would usually mange to sort them out before he began his other hearings, an impressive skill particularly bearing in mind that he was notorious for not arriving at the court until 9.45.

I often spent much of December keeping my fingers crossed that one of these disputes didn’t flare up. On year I was deeply irritated to find that the court had listed an emergency contact application hearing at very short notice on the day of the office Christmas party. I went to court for the hearing and arrived at the party just as they were serving the pudding.

The court doesn’t do this anymore. Firstly, it simply doesn’t have the time or resources. The court has far more cases than it can cope with, largely due to the government’s decision to remove legal aid from most parties in family cases. People’s inability to access legal advice at an early stage has meant that far too many people aren’t steered away from the court and towards alternatives such as negotiation, mediation or arbitration. As a result, the court has far more cases than it can cope with. Delays lasting many months are now the norm.

There are also procedural reasons why it simply isn’t possible. The Court is no longer able to make interim child arrangements orders for contact at short notice. This is because it is not allowed to make an order until Cafcass has first undertaken safeguarding checks. These checks usually take weeks at best, sometimes longer. If I commenced an application at court today (2 December), there is very little chance that the checks would be completed before Christmas.

So what else can be done?

The first option is to negotiate, either direct with your ex if you can or through a solicitor. If the ex is prepared to be reasonable and realistic, and hopefully gets some legal advice, then agreement can probably be reached.

Alternatively, you can use a family mediator to try and reach an agreement. Again, whether this works will depend on whether your ex is prepared to take part and to be reasonable and realistic. The mediator cannot make a decision for couples in mediation; his or her role is to help you and your ex decide. They tend to get very busy, so the sooner you contact a mediator, the better.

Failing that, if what you need is a legally binding decision from an independent third party, you can agree to jointly appoint an arbitrator to make the decision. This is not a cheap option, but it does have the advantage that, in suitable cases, the arbitration can take place at very short notice.

How much time can you reasonably expect to have with the children at Christmas? This can vary. Some parents have lots and some have less, depending on their circumstances. There is no standard way that this happens, but common options involve Christmas Day on every other year, or splitting Christmas Day between them. Parents who argue that the children should always wake up in their one beds on Christmas morning risk being given short shrift by the court which is likely to point out that the children have two parents and that they should share this happy experience.

The key to avoiding strife at Christmas is to be reasonable and realistic. All that a big argument will do is lead to a big legal bill and risks the children and their parents not having a wonderful Christmas.

2 December 2023


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