“Nesting” Arrangements and the Conduct of Interim Hearings in Private Law Proceedings

Sometimes, although rarely, when parties separate, they agree that the children should remain living at the former family home, with the parents moving out and returning, when it is their agreed times to look after the children. The phrase used to describe this is a “nesting” arrangement.

Recently the court in A, B and C (Children: Nesting Arrangement) [2022] EWCA Civ 68  had to determine whether  such an arrangement should continue prior to the conclusion of the final hearing, listed some months later. At that interim hearing the the court heard submissions only, before making a decision to end the arrangement, replacing it with the more common arrangement of the children being with the parents in separate homes. That decision was the subject of an appeal. One of the grounds being, that the court made its decision without hearing oral evidence, either from the parties and crucially from the expert, an independent social worker, who was instructed to advise on the long term arrangements for the children.

Briefly,  the fact of the case are these. The parties separated in 2018. There are three children, aged 17, 15 and 9 years old. At the time of separation, the parties entered into an agreement whereby they shared care of the children on a 2:2:5:5 basis, forthnightly at the family home. In March 2020 because of the pandemic, the parties moved back together into the former matrimonial home with the children. That arrangement ended when the mother made an application for a child arrangements order, an occupation order and a non molestation order, alleging physical abuse against the father. At the first hearing an agreement was reached that reinstated the “nesting” arrrangement and the parties gave cross undertakings, that the children would spend each night in their care at the former family home. The court also directed a report from an independent social worker to make recommendations as to the final outcome.

The independent social worker’s report was filed in October 2021 and it recommended that the “nesting” arrangement should end and be replaced  by the more conventional arrangement, with the children living with their parents in two different homes. This was against the children’s stated wishes, but the independent social worker concluded that it accorded with their best interests. In relation to the  “nesting” arrangement the independent social worker had this to say:

“… 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  place or afford good outcomes for the children.”

Following the independent social worker’s report, the mother sought the father’s agreement to the “nesting” agreement being phased out, and for him to release her from the undertaking not to remove the children from the former family home overnight.

The father insisted that the “nesting” arrangement continue, but agreed to an interim hearing on the issue, pending the final hearing. That agreement was recorded in a draft consent order, sent to the court asking for a hearing on the interim issues. The draft did not make provisions for statements from the parties or for the independent social worker to give oral evidence.

On 9th December 2021 the court dealt with the issue on submissions only and ordered the arrangements to move to a 7:7 regime, with the children spending the times at the parties respective homes, and the overnights at the mother’s home increasing over time from two nights to three nights each fortnight, from the 1st March 2022. No application was made at the hearing for an adjournment to enable the independent social worker to be cross examined.

The father appealed the decision on three grounds. All grounds were dismissed.

One of the grounds, was that the judge had made his decision on the basis of hearing submissions only. At the appeal hearing the court was reminded of the provisions of Family Procedure Rules 22.7(1) and  22.8 (1), which set out respectively:

“ Subject to paragraph (2), the general rule is that evidence at hearings other than the final hearing is to be by witness statement unless the court, any rule, a practice direction or any other enactment requires otherwise.”

“Where at a hearing other than the final hearing, evidence is given in writing, any party may apply to the court for permission to cross examine the person giving the evidence.”

Tying those two provisions together  the court had this to say:

“ …The scheme of the rules is therefore clear. 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”

This case emphasise two things. Firstly, where there are “nesting” arrangements in place, the court will only sanction their continuation during proceedings, if they continue to be in the children’s best interest. One of the factors taken into consideration, will be whether there is parental conflict which the children are being exposed to that they might not necessarily be exposed to,  if the arrangement was a more conventional one, post separation.

Secondly, it is important that care is taken as to how the interim hearing is conducted, as often the decision made at this hearing, pending a final hearing many months later, will largely determine the final outcome. If there is an expert recommendation that your client wholeheartedly disagrees with, that expert should be cross-examined at the first opportunity, even if that means applying on the day of the hearing for an adjournment.