Lexis Nexis Chambers of the Year 2024

A nesting arrangement (sometimes referred to as a “bird’s nest arrangement” or “birdnesting”) is a form of a shared care arrangement in private family law proceedings.

In principle, a nesting arrangement involves the children residing at the family home on a full time basis, meanwhile the parents will arrange between themselves a schedule in which one parent lives at the family home with the other living elsewhere on an alternating basis. Essentially the parents move around the children rather than the ‘traditional’ shared care arrangement where children shuttle between the parents’ different homes.

The idea of a nesting arrangement is credited as originally having started off in the United States, but has since spread to other jurisdictions including Australia, the Netherlands, and of course here in England and Wales. A study by the Co-operative Legal Services in 2016 found that over 10% of separated and divorced adults in the United Kingdom were now choosing to prefer trying a nesting arrangement over the traditional shared care arrangement.

The increase in the use of nesting arrangements can be attributed to their use by high-profile individuals such as Mad Men’s Anne Dudek and her ex-husband, Matthew Heller following their divorce in 2016. Gwyneth Paltrow and Coldplay’s Chris Martin also used a nesting arrangement following their separation which she described as “conscious uncoupling”.

Since their introduction nesting arrangements have been praised as being a form of arrangement which is centred and focused around the children. By allowing the children to continue staying at the same family home all the time, it is much easier for the children to be able to stick to their regular and familiar routines. The use of a nesting arrangement also removes the concern a child may have of moving to somewhere new and having to adjust to new and unfamiliar surroundings.

A nesting arrangement can also help reduce the likelihood of a child having different attitudes towards their parents or viewing one parent in a negative light. Instead, the children feel that both their parents are playing equal and important roles in their upbringing.

However as with all things, nesting arrangements can also have their disadvantages. For example, the ability of a parent to maintain a separate home in addition to the family home is costly, especially more so during the current cost of living crisis. A nesting arrangement can therefore potentially be seen as an option only available to those who have sufficient finances to support such an arrangement.

In situations where a parent does not have the means to afford another property they have sometimes lived with family or friends who live nearby when they are not living at the family home. Yet, it is important to consider that this can place a burden upon those friends or family who are providing the accommodation to the parent in the nesting arrangement. Any space provided by a friend or family may not always be guaranteed for the length of the nesting arrangement either and that parent may be required to move further away from the family home than originally intended which could in turn cause difficulties logistically.

Nesting arrangements can be extremely advantageous and useful as an interim solution following the breakdown of a relationship where there is no animosity between the parents. For example, where a relationship has broken down and the family home needs to be sold to enable each parent to buy their own from the proceeds of sale, a nesting arrangement can be used as a measure to provide certainty and maintain as much normality for the children as possible whilst the parents look for new homes to move into.

The use of nesting arrangements is something which the judiciary has indicated is not designed for the long term. Cohen J was quoted by the Court of Appeal in  Re A, B and C (Children: Nesting Arrangement) [2022] EWCA Civ 68 as being critical of the used of a nesting arrangement for a prolonged period of time. During an interim hearing he had described the use of a nesting arrangement as “deeply unsatisfactory…not a satisfactory long term solution or even a mid-term solution” and that in cases where the parties have the means and resources to do so “it should be more than possible to arrive at a solution where each [parent] has their own home and it is the children who do the shuttling rather than the adults”.

It should be noted that not every case will be suitable for a nesting arrangement. The lynchpin of a nesting arrangement is that the parents work constructively and respectfully. Parents therefore need to abide by rules agreed between them and be respectful of the other’s boundaries. A large amount of trust between the parties is therefore required and consideration has to be given to things such as what happens if a parent begins a new partnership or as to who is responsible for food/utility bills? 

From the above it should be obvious that in cases where there is significant animosity between the parents or allegations of any form of domestic abuse has been raised that a nesting arrangement will not be a suitable solution.

To conclude, nesting arrangements are a practical and effective solution to maintaining some normality and certainty to the children’s life following the breakdown of their parents relationship. However, parents should be mindful of the practicalities involved and note that whilst the judiciary are generally approving of the use of nesting arrangements, they believe that they should only last for as long as is necessary.

Written by Pupil Barrister, Adam Singh Hayer.

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Lexis Nexis Chambers of the Year 2024

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