Written by Chris Fairhurst

Partner at Simpson Millar

Chris has over 25 years’ experience specialising in financial and children arrangements following separation, divorce, and relationship breakdown. He is one of a limited number of dual qualified Resolution and Children Panel Accredited Specialists in the country, recognition of expertise in assisting clients through the whole legal process including appeals to the High Court and Court of Appeal.

I pick my two sons up every weekend from their mums. And drop them off. It’s a 90 mile round trip. Could I ask the Court to insist driving is shared between us?

When I’m asked this question, I’m reminded of a case I dealt with some years ago where the couple were trying to divide up the equity in the matrimonial home and other assets of the marriage. It wasn’t a huge case and the assets were modest but both appeared sensible individuals and had their own jobs which meant there was going to be a clean break on making of a final order. Incidentally, there were no children so it was more straight forward than it could have been, or so I thought.

Although the couple didn’t see completely eye to eye, negotiations took place between solicitors and after a bit of toing in froing a comprehensive agreement was reached in respect to sharing the proceeds of sale and other capital assets and a draft consent order drawn up for submission to court. And then without any prior notice in any of the prior exchanges, the curveball came, a demand from the other party’s solicitor that the whole deal was off unless she could keep the picture over the fireplace. It’s worth was in the hundreds when the other assets were in the tens if not hundreds of thousands.

The starting point must be, however difficult, is to try and put yourself in the other parent’s shoes.

And the deal very nearly collapsed as a result. My client on principle demanding to keep it, as it was one of a pair and therefore there was two to share, the former partner happy to walk away despite the costs incurred to date getting an agreement. It was a case of who would blink first. My advice to my client was to leave it, buy another with the money you’ll save on my fees for arguing about it. Reluctantly but eventually, the advice was accepted but not without criticism of me from my client that I hadn’t secured the picture and the other lawyer had. I had offered the opportunity of applying to court and letting a judge decide but my client made the sensible decision that the costs of doing so were disproportionate to the value of the picture and there was the uncertainty in any event of what a judge, a stranger to both parties, would decide.

So, what’s this got to do with travel and seeing my children? I hear you ask. Well the issue of who collects and returns the children after time with a parent is the “picture over the fireplace” equivalent in child arrangements cases. It is sadly an issue that rears its head more often than it should between parents who don’t love each other anymore but clearly love their children and in their own way want the same for their children, that they be happy, even if they have different views about how that might be achieved.

My advice is to follow the course of least resistance. 

On many occasions, sometimes at the court door, protracted discussions and agreements can be brought crashing down by an insistence that one parent or another “do all the travelling if s/he wants to see them.” or “I don’t see why I should do it all, s/he has a car as well”. Does it sound familiar?

Faced with that predicament, everything else agreed, what’s a court to do. Unfortunately, it’s a question of a contested hearing with evidence and submissions from both sides about why the court should favour one parent or another. And yes, if pushed, the court could decide that the travel is shared, or not! You pay your money you take your chance.

There is no hard and fast rule about any arrangements for children. The family court strives to achieve an order which it believes is in the best interests of any children of the family by applying the welfare checklist which appears in the Children Act 1989.

However, the law is discretionary and the reality is that that no two families and therefore no two cases are alike. Each will turn on its own facts and when dealing with travel arrangements, there is no presumption in favour of one parent or another, or is the court obliged to share the travel because that is the fair thing to do.

All things being equal of course, 2 parents earning the same, with the same working hours and similar access to transport, or family members to assist, you would hope that arrangements to share the travelling could be agreed without need of a third party deciding which might not actually satisfy anyone, particularly the children. And it is widely recognised that a child will benefit emotionally from seeing both parents co-operate and “be happy”, being able to enjoy being taken by one parent to the other and vice versa.

However, real life isn’t like that. Parents increasingly work different shift patterns; one parent may earn a lot more or have a car when the other might not.

The starting point must be, however difficult, is to try and put yourself in the other parent’s shoes. Can arrangements be made that make travel arrangements easier for one or both. Is there someone in the family or close friends that you both trust that can help you out?

But consider this, is sharing the travel necessary to ensure that the children continue to have a relationship with you and by the other parent not doing so would that equate to them failing to facilitate the relationship, or just a point of principle?

If the former, then if matters cannot be agreed then it is something you may want to consider getting legal advice about if mediation, whether formally or with trusted others, cannot assist and as a last resort make an application for a Family Court to decide based upon the circumstances as they apply to you and your family.

If the later, then you really need to consider the financial and emotional cost of making an issue out of it where all else is agreed. I’m sure it’s happened, although I’ve never dealt with an application, where the family court is asked to simply deal with the sharing of travel and you’ll likely have to attend at least 2, if not 3 hearings, before a court would even decide one way or another. An expensive exercise if you’re paying good money for a lawyer to represent you.

My advice, a bit like to the client with the picture, is to follow the course of least resistance. Do it if can you can do it and if you can make a concession that can help the situation then you may find it helps discussions about something else that can’t be agreed now or further down the line, and if a parent simply says, “I’m not doing it” you can show you’ve done all that you could have done if the need arises.


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