Nesting Arrangements – will separating parents flock to this concept?16Mar2022
For separating and divorcing parents, one serious consideration often is: how will this relationship change affect our children? And rightly so.
While the separation and divorce process involves the breakdown of the parent’s relationship, the children’s lives are inevitably turned over. Often, the children will stay with one care and control parent in one home, whilst travelling for access with the other parent in another home. This often involves packing bags multiple times during the week or having two sets of uniforms, clothes, and toys at each house.
Alternatively, there is the concept of “nesting”. The philosophy behind this concept is that it is child focussed. It involves the children living in one home, often the former family home, and the parents moving in and out in accordance with an agreed access schedule. This, in theory, allows the children to maintain a sense of stability and security whilst the parents are navigating the separation or divorce process.
Real world application of nesting
It is a new concept, and nesting arrangements are not for everyone.
In our experience, we have seen only a small proportion of parents in Hong Kong choose to implement “nesting” as a co-parenting arrangement, and often time, it is seen as a bridging mechanism rather than a long-term solution. If it is implemented, it is likely something agreed between parents where there is very high level of trust and communication. Or, it may be preferred for children who have special medical or educational needs, and the nest is the optimal location for those needs to be met. To emphasise its rarity, as at the time of publishing this article, there are no reported judgements in Hong Kong considering this arrangement.
It is worth noting that “nesting” is different from “separated but living under the same roof”, the latter of which is much more commonplace in Hong Kong due to the city’s notoriously expensive real estate and rental market. Nesting will involve the parents physically moving in and out of the former matrimonial home, as opposed to a change of living or sleeping arrangements while living in the same household.
When determining whether nesting is right for you and your children, parents should consider amongst other things:-
- Message to the Children – are the children at an age, developmental stage and state of mind where the nesting arrangements is in their best interests? If nesting is preferred, a clear and simple message, in age-appropriate language, should be conveyed to the children by the parents, jointly where possible, so that they have an understanding of the change in the parental relationship and how the Children will spend time with each parents.
- Care arrangements for the Children – it is crucial that parents consider carefully the practical arrangements that shall be applied to the Children. Parents should consider, for example, how each will spend time in the nest, what practical arrangements each parent shall be responsible for (think medical appointments, extra-curricular activities, online schooling and school events), what common rules apply, and how the Children can communicate with a parent whom is not in the nest.
- Financial arrangements –you and your co-parent will have to maintain two to three households. In a city like Hong Kong, this can be especially challenging as rents are high and space is limited. Financial arrangements and affordability should be carefully considered, agreed, and recorded for the interim period. Consider practical issues like how mortgages and rental are paid and by whom. How will bills, personal and children’s expenses and school expenses be paid. Create an agreed budget.
- High level of trust and cooperation required – it almost goes without saying that a high degree of communication is preferred for nesting arrangements. If the breakdown of the relationship was coupled with a breakdown of trust, there is a very real possibility that parties will not be able to cooperate and communicate and this may create a negative environment for the children in the nest. Consider having a communication plan between the parents which can include preferred method of communication, rules of acknowledgment or replies and what decisions should be made jointly.
What do the Courts think? Recent case example: A, B and C (Children: Nesting Arrangement)  EWCA Civ 68
As we point out above, the HK courts have not considered this issue as a central point. The Court of Appeal in England and Wales, has however, recently considered a nesting arrangement.
A, B and C concerns an appeal by a father against an interim decision regarding his three children, A, B and C, girls aged 17, 15 and 9 respectively. The family had an on-going nesting arrangement under which the children remained living in the former matrimonial home while each of their parents move in and out depending on the schedule of care arrangements (“Arrangement”).
This Arrangement continued until the first COVID-19 lockdown in the UK in March 2020, when both parents resumed living at the former matrimonial home full-time with the children.
The Arrangement was described as ‘desperately unsatisfactory’ by the Judge at the first appointment hearing, commenting that this is not a satisfactory long-term or even a mid-term solution for the family.
Trial on the children’s arrangements was adjourned several times for various reasons, including for the parties to attend mediation and to take into consider B’s GCSE exams. During these periods of adjournment, a S. 7 report (equivalent to Social Investigation Report) was made.
The report stated, among other things, that:
- The children wish to continue to live at the family home;
- The father’s conduct shows characteristics of coercive and controlling behaviour;
- The mother favoured phasing out of the nesting arrangement while the father did not; and
- The officer recommends gradually introducing overnight staying access between B and C and the mother to rekindle their trust in the mother.
In December 2021, there was a hearing to settle interim arrangements regarding the children until the trial in July 2022. At the hearing, the Judge took into consideration the s.7 report, and was of the same view that the Arrangement has overextended beyond the time of it being helpful to the children for the following reasons:
- It gives false promises to the children as to the reality of their parents’ separation;
- It deprives them of spending quality time with their mother in her new home; and
- The Arrangement also exposed the children to the tension and warfare between the parents.
The Judge concluded that allowing the Arrangement to continue for another 7 months until trial was against the children’s best interests. The Judge made the order allowing the mother to take the children to her new home, initially only during the day, and subsequently for up to three weekend nights per fortnight.
The father appealed the Judge’s decision, arguing unfairness in the procedure, lack of impartiality of the Judge and that his analysis regarding the children’s welfare was wrong.
The Court of Appeal dismissed his appeal on the following reasons:
- It is usual procedure for interim arrangements to be decided on written evidence. If the father were of the mind to cross-examine the officer regarding matters stated in his report, he should have made an application to do so. He did not, and therefore cannot now complain that the report gives a false picture regarding the family dynamics.
- The fact that the Judge at the hearing was the same Judge at the parties’ financial dispute resolution hearing does not impact the objectivity of his assessment as to the children’s arrangements. The parties had opportunities to argue for a different Judge to be allocated but did not do so.
- The father was unable meet the high standards of an appellant where he challenges the weight that the Judge attached to each of the factors he considered regarding the children’s welfare. The strongest argument in favour of continuing the Arrangement was the children’s opinion. The Judge took that into consideration, and only departed from the nesting arrangement in a mild manner. It was thus a measured and proportionate conclusion.
From the A, B and C (Children: Nesting Arrangement) decision, we can see there that Court considers “nesting” arrangements are acceptable as an interim measure and during the continuation of the divorce proceedings but, at the end of the day, the children’s best interests will always come first. Once the Arrangement has served its primary purpose it may become averse to the children’s interests. Best Interests, also known as the Welfare Principle, is the same principle which applies in Hong Kong.
We have not seen parents flocking towards nesting arrangements locally and likely, as a result, we have yet to see how Hong Kong Courts will consider nesting arrangements. Each family is different and individual children have different needs. Proper care and attention must be made to all relevant circumstances and as family law specialists, we will always advise parents to consider what it is in your child’s best interests and the appropriate circumstances of the nest, if considered appropriate. Specialist legal advice should be sought to ensure access and financial arrangements are appropriate and viable.
Joanne Brown / Joanne Lam
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.