‘Nesting’ or ‘bird nesting’ – the concept of a separating couple making a joint decision to live separately (most usually in separate properties) but share the family home for the purposes of child arrangements. Is this a concept we are going to be seeing more of?  The idea of nesting has hit the headlines in the summer after Justin and Sophie Trudeau announced their arrangements for their 3 children would be akin to nesting. Given the security considerations, it’s perhaps not surprising they’ve agreed these arrangements but it’s still a positive example of modern parenting arrangements, whether for a short transition period or more settled arrangement. Whilst it sounds simple enough, the jury is out on whether it is an arrangement that can stand the test of time. 

In the case of A, B and C (Children: Nesting Arrangements) 2022 EWCA Civ 68 the court considered this very issue, when father in that case appealed the decision of the judge to bring an end to nesting arrangements which he considered had overextended the time it was helpful to the children and that the negative consequences were that (1) it gave false hope about the separation (2) prevented the children spending quality time with their mother in her new home and (3) affected the mother’s ability to be a good mother. The judge ordered the arrangements to change and so the children would start spending time with their mother in her new home, increasing over time to shared care.  The Father’s challenge to this decision was unsuccessful.

The judicial comments made in this case give some insight into how Judges may view these arrangements as an option that has a place in the short term whilst longer term arrangements are considered, but would potentially be counter productive beyond that.

 It’s certainly not an arrangement to enter into if parental discord is high or without proper consideration of the emotional, practical and financial implications for both  parents but also the children.

Below are just questions and considerations that spring to my mind when thinking about this arrangement with our clients:

Emotional considerations

1. Whilst keeping the children in the family home, with their routines, bedrooms and the stability that affords them is a definite positive of a nesting arrangement, against this consideration should be given to whether this could cause confusion and halt their ability to process their separation.   
2. Children of different ages may feel very differently about this arrangement and the needs and wishes of all children need to be balanced.
3. Is there sufficient trust and communication between you for this to be a positive arrangement. 
4. It could allow everyone to take a step back, breath and objectively assess future plans whilst keeping both parents actively involved in caring for the children.  

Financial considerations

1. Will you rent or purchase a second property? Will you stay with family/friends?
2. Who will continue to meet the outgoings, maintenance on the family home?
3. How will you fund the purchase, rent, outgoings, maintenance on the second property?
4. Who will buy groceries/cleaning material for the family home?

Practical considerations

1. Will you be agreeing a trial period and if so, how long will this be?
2. Ensuring privacy for each parent and respect of boundaries-how will this be achieved? 
3. Is it intended to be a short-term arrangement or an agreed point in time to review?
4. What if one of you wants to stop the arrangement before the review or end of the trial period?
5. What if one of you commences a new relationship? How will that be managed?
6. How will you regulate the arrangement? A parenting plan? A ‘Nesting’ Agreement?

Whether such an arrangement works will be very much circumstance specific and dependent on a number of variables. However, most importantly, is that for this to work there has to be positive communication, accord, mutual understanding and respect between the adults involved. Without this, what starts with the best of intentions could end being a bumpy ride that does more harm than good.

If you are separating and considering a nesting arrangement or wish need to discuss any other matters arising then do get in touch here or email enquiries@ne-familylaw.co.uk or 020 3924 8462.  We listen and are here to help.