The Court of Appeal discusses the utility of nesting arrangements following the breakdown of a marriage and reminds litigants of the broad discretion of the court to make orders on an interim basis when in the interests of a child’s welfare to do so.
Nesting arrangements
This case concerned a father's appeal from the decision of the High Court to make an interim child arrangements order varying an existing long-standing nesting arrangement. It was the father’s position that the nesting arrangement should remain in place, without any adjustment, until the final hearing of the case in 6 months’ time. The mother sought permission to take the children to her own home for a portion of the time the children were in her care rather than being restricted in spending all of her time with the children in the former family home.
The father was given permission to appeal.
A ‘nesting arrangement’ is a pattern whereby each parent takes it in turns to vacate a family home, leaving the other parent at home with care of the children. The benefits and drawbacks of such arrangements were considered by the Court of Appeal.
In upholding the decision of the High Court, Lord Justice Baker observed that the judge at first instance’s observations amounted to an objective analysis of nesting arrangements as follows:
The judge agreed with the independent social worker’s comments that nesting arrangements work well and can be of benefit to all when the parties are in accord but where parental conflict and discord remain, such arrangements do not afford good outcomes for the children.
Whilst nesting arrangements can be helpful to the children, they have a number of drawbacks, namely:
They can give false promises to the children as to the reality of their parent’s relationship; and
In this particular case, the arrangement had significantly overextended beyond the time that it has been helpful to the children. It was depriving them of the chance to spend quality time with their mother at her new home, which impinged on her ability to be as good a mother as she could possibly be.
Whilst each case will turn on the specifics of the family in question, these comments are helpful when considering the utility of nesting arrangements post a transitional phase of separation in situations where there are high levels of parental conflict.
Court’s powers to make interim orders
Lord Justice Baker advised that judges should be cautious about making interim orders under the Children Act which effectively determine a final issue. However, where a judge concludes that a certain course is necessary in the interests of a child’s welfare then they are required to take it.
He found that the judge at the first instance, who had a longstanding involvement with the case, was right to conclude there was a welfare-based reason to change the interim arrangements.
Lord Justice Baker, echoing the submissions of the mother’s leading counsel Anna McKenna QC, reminded litigants that important interim decisions about children are frequently made in the family court at interim hearings without hearing oral evidence from any parties or experts, including not only decisions in disputes between parents about child arrangements, but also decisions to remove children from their parents into the interim care of a local authority.
Evidence at interim hearings
Lord Justice Baker reminded litigants that only written evidence is permitted at interim hearings unless an application is made and granted for the witness in question to attend such a hearing to give oral evidence. The onus is firmly on the party who wishes to challenge written evidence to apply for that witness’s attendance in advance of the hearing taking place. In this case the father had not applied for the independent social worker to attend at the interim hearing and as such the judge was entitled to place reliance upon his written report.
A link to the full judgment can be found here
Sarah Musgrave
9 February 2022