‘Nesting’ – A Good Idea or Not?

In a decision of the Court of Appeal handed down on 3 February 2022 our courts dealt with the issue of a ‘nesting’ arrangement, which is a relatively new concept where separated parents agree that their children should remain in the former family home with each parent moving in and out depending on when it is their turn to care for the children.

In theory, this can be an excellent arrangement to ensure that the children remain settled and that they have a stable and consistent base. This might be especially important if they are taking exams or have very busy social and extra-curricular schedules.

In the case of Re A and Others (children: nesting arrangement) the father brought an appeal against a decision made by the Judge in the court below, that the ‘nesting’ arrangement should not continue.

The father was a successful businessman and the mother an artist. The parties’ standard of living prior to the breakdown of the marriage had been of a high standard, and the parties’ financial position was more than healthy.

When they separated in 2018 they agreed an interim arrangement to enable their 3 daughters who were aged 17, 15 and 9, to remain in the family home and they would spend time with each parent during the school term as a 2:2:5:5 pattern. The father wanted to retain this arrangement but the mother did not. The mother said that she had agreed to this because she was not able to afford alternative accommodation.

In 2019 the mother commenced financial remedy proceedings and after the first directions appointment the judge indicated that he found the ‘nesting’ arrangement as unsatisfactory and neither a long-term nor medium-term solution. The judge felt that there was sufficient money and resources available to enable each parent to have their own home and for the children to move between the two homes.

Matters became difficult in 2020 after an incident at the property when the police were called. Mother made applications for a child arrangements order and occupation and non-molestation orders under the Family Law Act. At the first appointment on those applications an independent social worker was engaged to provide a report to the court on what living arrangements would best promote the children’s welfare.

The financial proceedings were subsequently settled on the basis that the mother received a sum of €22 million, enabling her to purchase or rent a suitable property of her own.

In December 2020 the Children Act proceedings came before the court and in January 2021 the two older children had consulted with their own solicitor. The children stated that they wished to be kept informed about decisions but did not wish to be joined as parties.

The independent social worker completed his report on the basis that the father had said that the ‘nesting’ arrangement should continue and that he (the father) blamed the mother and her advisors for the harm that the children had suffered. The father was opposed to the children staying with the mother in her new home or even visiting her there. The mother, on the other hand, told the independent social worker that she found the father a frightening man who was determined to always get his way. She raised several examples of what she called controlling and coercive behaviour. She didn’t feel able to continue with the ‘nesting’ arrangement and she felt that shared living arrangements in two separate houses would be the best way forward.

The children’s view was that they wished the current ‘nesting’ arrangement to continue.

The independent social worker felt that the father’s conduct had shown evidence of coercive and controlling behaviour and although the children had expressed their wishes to retain the current agreement, he reached the conclusion that the children’s best interests were served by balancing their time between both parents in their separate homes.

Quoting from the independent social worker’s report, he says:

‘In my experience, nesting arrangements work well and can be of benefit to all when the parents are in accord. I also have experience of such arrangements when the parents continue to be in conflict and where the children remain exposed to the same. I am not aware of such arrangements, where parental conflict and discord remain, that remain in place or afford good outcomes for the children.’

The independent social worker felt that the current arrangements would further harm the quality of the children’s relationship with their mother. The judge expressed the view that the ‘nesting’ arrangement could have engendered a false promise to the children as to the reality of their parents’ separation. It also served to deprive the children of spending quality time with their mother in the new home that she had set up.

The judge found that the arrangement should move to a 7:7 cycle and that the children should spend time in each of their parents’ homes, feeling that it was time for the family to move on. Consequently, the father’s application was refused.

The case dealt with many different issues in detail, however it seems clear, at least on the issue of the ‘nesting’ arrangement, that whilst this can be beneficial to some children of some parents on a short-term basis, where there is a great deal of conflict between the parents, this can cause children harm.

We expect to see many more cases attempting a ‘nesting’ arrangement as the concept becomes more well-known and popular.

If any of these issues have affected you or you wish to discuss them further in some way, then please contact a member of our Family Team on telephone number 020 7439 8692.