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Nesting arrangements and the child’s best interests

In February 2022, the Court of Appeal dismissed a father’s appeal within private law children proceedings against an interim order made by Cohen J, which had varied a ‘nesting’ arrangement. In doing so, the Court provided useful reminders regarding evidence and interim orders. It also indicated when the judiciary are likely to consider nesting, whereby the children remain living in the former family home while their parents move in and out to provide care, an appropriate arrangement.

Summary

The three children, aged 9, 15 and 17, lived with both parents on a 2:2:5:5 basis. This was initially agreed between the parents. However, at the first appointment on 29 November 2019, Cohen J described the nesting arrangement as “desperately unsatisfactory … not a satisfactory long-term solution or even a mid-term solution”. Certainly, there was enough money available for each of the parties to rehouse satisfactorily, such that the children could do the shuttling between homes, rather than the adults. In fact, in September 2020, the parties attended a private FDR and mediation, which led to a settlement of the mother’s financial claim under which she received the sum of €22m.

Around the same time, the mother made an application to the Court for shared care of the children between two households. The father wished for the nesting arrangement to continue. The children also expressed their wishes and feelings to remain living in the former family home.

An independent social worker (ISW) recommended a shared care arrangement. He acknowledged that this was against the children’s stated wishes but concluded that the transition was required in order to prevent further damage to the children’s relationship with their mother. He also cited the high level of parental conflict and the father’s coercive and controlling behaviour as reasons as to why the nesting arrangement was not appropriate for the children.

The final hearing was adjourned by consent, but one day was used to consider the interim arrangements. The judge heard submissions and determined that the arrangements should be varied such that the children spend alternate weeks with each parent and increasing amounts of time with their mother in her own property.

The father appealed on the following three grounds:

  1. That the Court’s reliance on the independent social worker’s report was fundamentally unfair. The report was heavily critical of the father and, as he was not cross-examined, he had not been able to correct the picture provided by the expert. Leading counsel for the father also argued that in relying on the report, the judge had overlooked the extensive evidence of co-operation between the parties, including their mutual regard for the nesting arrangement leading up to the report and ongoing commitment to family therapy.

This was not accepted by the Court of Appeal as interim hearings are often carried out on the basis of submissions only. The father could have applied to cross examine the expert or to file a statement, however, he failed to do so.

  1. That the judge lacked impartiality. The judge had made remarks about the nesting arrangements at an earlier hearing and the same judge had then made further comments about the arrangements in the judgment that was appealed.

This was also not accepted by the Court of Appeal. The father had not applied for the Judge to be recused. Nor had he raised concerns before the hearing.

  1. That the judge had failed to take proper account of the firm and clear views of the children. The two older children had consulted a solicitor at an earlier stage in the proceedings and, therefore, leading counsel asserted that no decision that went against their wishes should have been approved without giving them a chance to reconsider whether they wanted to seek advice and/or make direct representations.

In addition, counsel submitted that the judge had effectively determined one of the ultimate issues that the final hearing was designed to resolve when there was no welfare-based reason to do so at that stage and no urgency requiring an immediate change in the arrangements.

This was also was not accepted by the Court of Appeal, who endorsed the judge’s overall welfare analysis. The judge had carefully considered the wishes of each child but concluded that they were outweighed by the evidence that any extension of the existing arrangements would be harmful.

The Court of Appeal also noted that the order had all the hallmarks of an interim order, being capable of variation at a final hearing, if necessary.

Evidence

This case serves as a reminder that, under rule 22.7(1) FPR, the general rule in family proceedings is that evidence at hearings other than the final hearing is to be by written statement. This is unless the Court, any other rule, a practice direction or any other enactment requires otherwise.

Under rule 22.8(1) FPR, where, at a hearing other than a final hearing, evidence is given in writing, any party may apply to the Court for permission to cross-examine the person giving the evidence. Therefore, only written evidence is permitted at interim hearings unless an application is made and granted for the witness to attend for oral evidence. The onus is firmly on the party who wishes to challenge the written evidence to apply for the witness’s attendance.

If, as per the appeal, the father had wanted the ISW to give evidence as to his findings, the father should have made an application for the same. Alternatively, a direction for statements from the parties could have been included in the agreed case management directions put before the judge at the first appointment hearing. Neither of these happened.  Instead, the parties agreed that the issue should be determined on submissions, which it was.

Interim orders

The Court of Appeal in this case issued a caution to the judiciary about making an interim order under the Children Act, which effectively determines a final issue. However, the Court also acknowledged that the judiciary are to make orders in accordance with the statutory principles in s1 of the Children Act and that, on occasions, this will require the making of an interim order.

In any event, this case reminds us that the making of an interim order does not preclude the Court at the final hearing from reverting to the earlier arrangement, or indeed any other arrangement considered to be in the children’s best interests at that time.

Nesting arrangements

Finally, the case indicates that, certainly at the judicial level, there is a view that nesting arrangements are only likely to serve the children’s best interests in the short term. They can work well and be of benefit to both parents and children alike, when the parents are in accord. However, eventually, the damage caused by the children’s exposure to any parental conflict will be outweighed by any benefit to the children of remaining settled in the former family home.

The Court of Appeal was, of course, not required to consider the practical pros and cons of nesting arrangements and I shall not go into detail about that here. Suffice to say, whilst nesting allows children to remain settled in familiar surroundings, providing them with valuable stability and consistency, clients should be reminded of the practical and financial implications of such arrangements. Each parent will need another property to live in when they are not with the children, which could mean that they are paying for at least two properties. Consideration must also be given to who will pay for the food and utility bills at any given time and what will happen if either parent establishes a new relationship.

Ultimately, such arrangements require a high level of trust and cooperation between the parties, which are likely to be in finite supply if, as in this case, the parties have had no choice but to issue proceedings in the Family Court.

At Rayden Solicitors, we can assist you and provide advice if you are effected by any of the issues mentioned here, please do not hesitate to contact us.

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