Who Has the Children at Christmas After Separation?

Lisa Pepper

There is no rule in England and Wales that decides who has the children at Christmas. Separated parents are expected to agree it between them, and most do. If you cannot agree, a court can decide, but it will only ask what is best for your children, and it needs time to do that.

For many parents, the first Christmas after separation is the hardest to plan. Both of you will want to wake up with the children on Christmas morning, and wider family will have their own hopes too.

This guide explains how parents usually share Christmas, what to do if you cannot agree, and why an application to court needs to be made well before December. It also covers what you can do if the other parent breaks an arrangement.

Who has the children at Christmas if parents are separated?

Neither parent has an automatic right to Christmas Day. Where both parents have parental responsibility, you have equal standing when it comes to decisions about your children’s time.

If a court has already made a child arrangements order, check what it says. Many orders set out the Christmas holiday, or alternate it year by year, and you should follow the order unless you both agree to something different.

If there is no order, it is up to the two of you. When a court does become involved, your children’s welfare is its paramount consideration. There is no rule that Christmas must be split equally, and the court looks at the particular children in front of it.

How do separated parents usually split Christmas?

There is no standard arrangement, but most families settle on one of these:

• Alternating years. The children spend Christmas with one parent this year and the other parent next year. This works well when parents live far apart.
• Splitting the day. The children wake up with one parent and move to the other after lunch. This suits families who live close by, but it can make for a long day for young children.
• Christmas Eve and Christmas Day, then Boxing Day. One parent has Christmas Eve and the morning, and the other has Boxing Day and the days after.
• Splitting the school holiday. The holiday is divided into two halves, with Christmas Day falling in alternate halves each year.
• A “second Christmas”. The parent who does not have the children on 25 December celebrates on another day, with presents and a Christmas meal of their own.

What should you think about when choosing?

The right arrangement depends on your family. It helps to think about:

• how far apart you live, and how long the journey between homes takes
• your children’s ages, and how well they cope with a busy day and a handover
• the wishes of older children, who will often have clear views
• wider family, such as grandparents who usually host Christmas
• how you will handle handovers so that the children do not see conflict

Practical tips for a calmer Christmas

Plan early. Christmas should be discussed well in advance, so that the children know what is happening and last-minute changes are avoided.

Put the plan in writing, even if it is only an email or a message you both confirm. A clear record avoids arguments about what was agreed. A co-parenting agreement can set out holidays for years ahead.

Support the children’s time with the other parent. Christmas can easily become a competition over presents and plans. When that happens, children feel caught in the middle. Encourage them to enjoy both Christmases.

Be prepared to compromise. If you are both willing to be flexible, Christmas can remain a happy time for your children.

What if you cannot agree on Christmas arrangements?

Talking directly does not always work, especially soon after separation. There are several ways to reach an agreement without a court deciding for you.

Family mediation and MIAMs

In family mediation, a trained, independent mediator helps you and the other parent work out arrangements for the children. The mediator does not take sides or make decisions. Our family mediation team can explain how it works.

Before you can apply to court for a child arrangements order, you must usually attend a Mediation Information and Assessment Meeting (MIAM). This is a first meeting with an authorised mediator to discuss whether mediation or another option could work for your family. You can attend in person or online.

There are exemptions from the MIAM requirement. These include evidence of domestic abuse, child protection concerns, genuine urgency, and having attended a MIAM or another form of dispute resolution about the same dispute in the previous four months.

Courts expect you to try other options first

Since April 2024, the court rules place more weight on resolving disputes without a court decision. A court must consider at every stage whether mediation or another non-court option is suitable. It can ask each parent to file a form setting out their views on those options. Our guide to non-court dispute resolution explains the changes.

Other ways to reach an agreement

Solicitors can negotiate on your behalf. You could also try collaborative family law, where you and the other parent each have a lawyer and work through meetings together, or family arbitration, where you appoint an arbitrator to decide the issue.

Applying for a child arrangements order before Christmas

If you cannot agree, either parent can apply to the family court for a child arrangements order. Under section 8 of the Children Act 1989, this is an order that decides with whom a child lives, spends time or otherwise has contact, and when. It can deal with a specific occasion such as Christmas.

You apply using form C100, online or on paper. The court fee is £270, and you may be able to get help with the fee if you are on a low income.

Why you need to apply early

Court applications take time, so do not wait until December. Under the court’s timetable, Cafcass (the service that advises the family court about children) carries out safeguarding checks first. In most courts, the first hearing should then usually take place about five weeks after the application is issued, and no later than six weeks, although some areas now use a different process.

That first hearing is often the best chance to agree Christmas, with help from the court and Cafcass. If you cannot agree, the court may need more information before it decides, and a disputed case can take months to finish.

In practice, an application made in late November may not reach a first hearing before Christmas. If you can see a dispute coming, take advice and start the process in the autumn.

What if it is urgent?

If a child is at risk of harm, or you fear the other parent will take the children abroad without your agreement, get urgent advice. A court can deal with genuinely urgent applications quickly, and urgency is one of the MIAM exemptions. If you are planning a Christmas trip abroad, a parent named in a child arrangements order as someone the child lives with can take the child abroad for less than a month without consent. Otherwise, you need the written consent of everyone with parental responsibility, or the court’s permission.

A court can also make a prohibited steps order to stop a parent taking a particular step, such as removing a child from the country. Our child abduction lawyers can act quickly if needed.

What if the other parent breaks the Christmas arrangement?

What you can do depends on whether there is a court order.

If there is no court order

An informal agreement cannot be enforced by the court. If the other parent refuses to stick to what you agreed, you can try mediation again, or apply for a child arrangements order so that future Christmases are settled.

If there is a child arrangements order

If the other parent breaks the order without a reasonable excuse, you can apply to the court to enforce it using form C79. The court fee is £270. The court should list an enforcement application for a hearing within 20 working days of issue.

The court has a range of powers. It can:

• refer you both to a parenting programme or mediation
• change the order, for example to make the arrangements more detailed
• make an enforcement order requiring the parent in breach to do unpaid work
• order compensation for financial loss, such as the cost of a cancelled Christmas trip
• in serious cases, impose a fine or send the parent to prison

The court will look at why the order was not followed and what is best for the children before it acts.

What to do in the meantime

Keep a written record of what happened, including messages about the arrangements. Do not respond by stopping the other parent’s time with the children, because that can count against you. Take legal advice before you apply.

How we can help

Our family lawyers help separated parents agree arrangements for children, including holidays and Christmas. Where agreement is not possible, we can apply for a child arrangements order, or for enforcement if an order is broken, and act quickly when a matter is urgent.

Whether you need advice on a first Christmas apart or a long-running disagreement, we can talk you through your options. Call us on 020 7485 8811 or fill in the contact form below.