A, B and C (Children: Nesting Arrangement): Only when the parents are in accord?

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The merits of 'nesting arrangements', sometimes referred to as 'birdnesting', are quite commonly discussed, both by family lawyers and the general media. Only a couple of days ago I noticed an article about it in a popular national newspaper.

And now the Court of Appeal has been discussing it, in the case A, B and C (Children: Nesting Arrangement), which concerned a father's appeal from a decision to make an interim child arrangements order varying an existing nesting arrangement.

The case concerned three children, all girls, now aged 17, 15 and 9. Their parents separated in 2018, and shortly thereafter it was agreed that the children spend half of their time with each parent, at the former matrimonial home.

I will skip the details of what has happened since, although it is relevant to say that the former matrimonial home is now the father's home, the mother having a new home of her own.

Child arrangements proceedings have been taking place since May 2020, and a final hearing is not due until June/July this year. Meanwhile, a hearing took place last December, to consider the existing interim child arrangements.

The mother proposed that the nesting arrangement be varied, with a view to it being phased out, so that the children ultimately spend half of their time at each parent's home.

The father objected, arguing that there should be no change to the interim arrangement, prior to the final hearing. The children also indicated that they would prefer the nesting arrangement to continue.

The independent social worker disagreed. We are told that: "he recommended that there should be a shared care arrangement such that, over time, the children were able to balance their staying time between both parents in their separate homes. He acknowledged that this recommendation did not reflect the children's stated wishes but concluded that it accorded with their best interests."

He continued by saying that in his experience, "nesting arrangements work well and can be of benefit to all when the parents are in accord." However, he said, he also had experience of such arrangements when, as here, the parents continue to be in conflict and where the children remain exposed to the same. "I am not aware of such arrangements", he said, "where parental conflict and discord remain, that remain in place or afford good outcomes for the children."

He went on: "I am concerned that maintenance of the current arrangements will further harm the quality of the children's relationship with their mother. Any transition to new child arrangements will present challenges but, in my opinion, the difficulties associated with the transition will be less significant than the ongoing harm experienced by the children if there are no changes to the current arrangements."

Hearing the case Mr Justice Cohen agreed that the children's welfare would be best served by varying the nesting arrangement, with the children spending two nights per fortnight at their mother's home until March 2022, and thereafter three nights per fortnight. 

In coming to this decision Cohen J had this to say about the nesting arrangement:

"My primary focus is the children and I am clear that the nesting arrangement has significantly overextended beyond the time that it has been helpful to the children. It has with it a number of drawbacks. In my judgment, it gives false promises to the children as to the reality of their parents' separation. It deprives the children of spending quality time with their mother in the new home that she has established. It seems to me that to expect the mother to see the children away from her home directly impinges on her ability to be as good a mother to them as she possibly can be. It is not right that it should continue for another seven months, as Ms Wood [the father's counsel] asks me to say, that these children should continue to be spending all their time at the family home, which was once their parents' home but is now the father's, and is simply what is left after the parents' marriage has long since come to an end."

The father appealed.

The Court of Appeal refused to interfere. The judge, who had had a longstanding involvement with the case, had concluded that there was a welfare-based reason to change the interim arrangements. There was plainly evidence to support that finding and no basis to interfere with his assessment, which was neither unfair nor wrong.

The father's appeal was therefore dismissed.