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Avoiding the Festive Feud

Every family is different. Every household is different. Hanukkah traditions, Christmas traditions and festive celebrations, happen differently under every roof.

What happens when parents separate?

How far should you go, when you ‘agree to disagree’ with your ex, about the arrangements and family traditions for the festive season?

What does the law say?

  • Most parents share Parental Responsibility, which means that significant decisions in their child’s life, including what time shall be spent with each parent over the festive period, must be made jointly.
  • In the event of a disagreement, either parent can make an application to the Court for an Order under Section 8 of the Children Act 1989, to define what time the children shall spend with each parent and to address specific issues.
  • When making a decision on any application under the Children Act 1989, the Court’s paramount consideration must be the welfare of the child.
  • When determining such applications, the Court will have regard to the matters in the welfare checklist, which include:-
    • The ascertainable wishes and feelings of the child concerned (in light of his/her age and understanding)
    • The child’s physical and emotional needs
    • The likely effect on the child of any change in his/her circumstances
    • The child’s age, sex, background and any characteristics of him/her which the court considers are relevant
    • Any harm which the child has suffered or is at risk of suffering
    • How capable each of the child’s parents are, of meeting his/her needs

The child’s religious upbringing is part of their background and a relevant matter a Judge will consider in determining which Order to make.

  • If both parents have agreed that the input of the law is required, it is possible to enter into arbitration, as opposed to traditional court proceedings. Arbitration has many advantages compared to Court proceedings. The arbitrator will be a trained lawyer specialising in the field. It is quicker, overall often cheaper, and perhaps most importantly, gives both parents some control over the process, timings for hearings and evidence required to determine the issue in dispute.

Top tips

  • Consider the longer term – if the separation is new, and the children are young, there will be many years, potentially decades, to navigate, as co-parents.
  • Keep the “grown-up talk” out of ear shot of their little ears. It is known that exposing children to parental conflict is not in their interests and is potentially harmful.
  • If communication is difficult, as is often the case, consider involving a third party; mediation and/or family therapy are both useful mechanisms for agreeing parenting principles, such as having the same rules and boundaries in place in respect of religious traditions.
  • The Child and Family Court Advisory Service (CAFCASS) has produced a template parenting plan. A parenting plan is a written plan worked out between parents after they separate. It can help clarify the arrangements, and set down what each parent expects of the other when the child is in their care.
  • If one parent is acting as the “gate-keeper” and not taking joint decisions in respect of how the children’s time should be spent, and acting unilaterally in terms of religious traditions, seek legal advice from a family law specialist.

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