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Holiday Care Disputes Involving Children

Published: 30th November 2016

Author: Jamie Rae, Edmonds Marshall

Published in: Fineprint | Issue #71

Using the Family Dispute Resolution process

In 2014, the government amended the law governing parenting disputes between separated parents. The changes included a requirement, in non-urgent cases, for parents to complete an out-of-court Family Dispute Resolution process (FDR) before they can go to court. As we head into the summer break, how does this regime apply to ‘semi-urgent’ cases dealing with parenting disputes around Christmas holiday care arrangements?

With Christmas coming up, separated parents inevitably start looking at dividing the time to be spent with their children over the holiday period. Depending on how well (or poorly) those parents can communicate with each other, this can be an area fraught with difficulty. Family lawyers are often asked for assistance. What happens if the dispute is still unresolved? What can the parents do?

Before 2014, the Care of Children Act 2004 gave parents the ability to apply to court to settle disputes about care arrangements. There were essentially no prerequisites under that regime. There was no requirement that you first attend mediation, or otherwise attempt to resolve the dispute yourselves. If you had a qualifying dispute, you could apply.

How FDR works

The changes were introduced to encourage parents to resolve their own disputes away from court. As a result, the current FDR regime was introduced. FDR comprises a two-step process. The first step is for both parents to attend a Parenting Through Separation programme (PTS), which is followed by the second step – mediation.

A dispute over the Christmas holidays won’t normally qualify as urgent, which means that FDR is required. The problem is the FDR process takes time. While the delays no doubt differ from region to region, there are anecdotal reports of FDR taking up to six months to complete, or possibly longer. As well, that process doesn’t guarantee a resolution. Court proceedings may then be needed, which brings further delays.

Christmas adds pressure

What does this mean for our Christmas scenario? If a dispute arises in, say, October or November, as they invariably do, there’s unlikely to be a resolution before the holidays begin.

By Christmas Eve, the parents may only have completed PTS and may still be waiting for a mediation to be scheduled. With no resolution, the result might be that those children do not get to see a parent (and vice versa) for that holiday period.

Arguably the pre-2014 system was better equipped at dealing with semi-urgent disputes such as this. A parent could apply to the court at the first sign of a dispute. That parent could ask that the other parent be given a shortened timeframe within which to respond – say three days. It was then possible to ask a judge to allocate an urgent hearing, thereby enabling the dispute to be resolved in time. While this was not guaranteed all of the time, it was possible.

Plan ahead now

The message for separated parents is to plan ahead. If you don’t already have an enforceable Parenting or Custody Order in place, and disputes are likely to arise, engage the FDR process sooner rather than later. Better still, reach agreement with the other parent and have that agreement made into a Parenting Order by the court.

If you wait until a dispute does arise, it’s probably too late to get it resolved before Christmas and to let your children enjoy the break seeing both parents.

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