28 March 2022
Many of us will have tuned into Martin Compston’s recent STV drama – Our House – which told the story of Fi and Bram Lawson – a separated couple with children learning to navigate new living arrangements – whilst also (in Bram’s case) dealing with a multi-million-pound blackmail and property fraud!
The show depicted a separated couple implementing a ‘Bird’s Nest Parenting’ approach. Bird’s Nest Parenting involves the family home (“the nest”) where the children (“the chicks”) continue to live and the parents (“the birds”) are the ones who move back and forth.
This allows things to remain consistent for the children. They stay in one house, and one bedroom, and continue at the same school. The parents essentially take it in turns to stay in the house with the children, finding alternative solutions for when they aren’t. This might be staying with family or friends or, as was the case for the Lawsons, renting a small property.
Is this a realistic option for separating parents in Scotland? Yes, it could be. However, it’s important to examine this in the context of our legal framework in Scotland. Too often, parents find themselves walking a tightrope between doing what’s best for their children, whilst allowing them to move on with their lives as individuals.
The law relating to separation and finances envisages a clean break, where financial ties to one another are severed completely - by selling, transferring and retaining assets and debts. It’s important to highlight that retaining a jointly-owned property and possibly a mortgage would not necessarily achieve this – certainly not in the short term. There would remain a financial commitment and relationship between the parties.
On the other hand, the law relating to children focuses on outcomes that represent whatever is in the children’s best interests. The needs and desires of parents often take a back seat. Therefore, it is easy to see how the bird’s nest option works for the children when their welfare is in the spotlight.
There are potential financial benefits to the bird’s nest parenting option. It might not be viable at the point of separation to sell the house due to a turbulent property market. Retaining the property might allow the situation to improve so that once the chicks have flown the nest, both parties are in a better financial position.
However, retaining a jointly-owned asset post-separation comes with risks – who pays for what? What happens if either party meets a new partner? What happens if one person wants out and the other doesn’t? In order for it to work, there needs to be a clear framework for what will happen in a number of scenarios. This is achievable in Scotland by regulating this in a Minute of Agreement – essentially a binding contract between parties. For example, parties might agree to retain the property until their youngest child attains a certain age.
One factor which may assist in ensuring a successful bird’s nest arrangement (or any arrangement involving children) is the involvement of a third party - in essence, a form of mediation.
This allows couples to focus on the things that will impede them moving forward. In England, it is a prerequisite in the majority of child cases for parties to have at least one exploratory meeting about mediation before they raise court proceedings, and funding has been made available in some situations to allow people to access this form of alternative dispute resolution.
This too is envisaged in Scotland and the Children (Scotland) Act of 2020 makes specific provision for the government to run a pilot scheme similar to that in England. The pandemic has stalled progress with this, but it has to happen and will mark a huge shift towards encouraging parents to look at other ways of resolving difficult issues.
Putting yourself in your children’s shoes when making decisions surrounding separation is certainly an admirable feature of bird’s nest parenting and one that can and should apply, even when “bird-nesting” is not an option.
Making decisions that focus on minimising the impact of separation on children will have lifelong benefits for them and encourage a more cooperative approach to separation. This doesn’t need to be at the expense of a clean break - but you might need a little assistance to help you get there.