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Parenting Plan – What is the right of first refusal? Parenting Plan – What is the right of first refusal?

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Jun 19

Parenting Plan – What is the right of first refusal?

Written by Joanna Lofthouse
Senior Associate

DDI: 01423 724635
M: 07892 792457
E: jo.lofthouse@raworths.co.uk

Often, one of the most contentious issues following a separation regards children and specifically what time each party can spend with them moving forward. As you might expect, discussions between parents to decide what is in the children’s best interests can be tricky and emotional.  As part of any separation parents must learn to co-parent in a different way and this will either be through:

  1. A process of working together to reach an agreement
  2. Discussing matters at mediation
  3. Through the assistance of solicitors
  4. As a last resort with a Court Order

One way of trying to avoid Court proceedings, is through a parenting plan. This is where parents can formulate what they believe is in the best interests of the children; including what time they should spend with each of their parents and in what circumstances. Ultimately this sets out the agreement between the parents and is a child focused document with the children’s best interests at its core.

This document often relates to arrangements which would have been normal day–to–day activities previously; but following a separation become far more difficult to navigate. One such example would be where one parent is travelling for work and it is inappropriate for the child to accompany that parent. Prior to a separation, it would have been likely (almost an unwritten arrangement), that the other parent would provide the care for the child.  Following separation such assumptions and practices can become challenging and it might be necessary to make alternative arrangements for the childcare.

The question then becomes who? Is it right that the child is then cared for by another family member or a child minder when the other parent may be available to look after them?

As a general rule, most agree that it is usually in the child’s best interests to be cared for by their parents; however where there is a difficult relationship between those parents challenges can arise. Quite often, if one parent is busy, they might substitute their allocated time with their child with a third party/family member, rather than speaking to the other parent to see if they might be available first.

Because of such situations, something called “right of first refusal” is increasingly being added to parenting plans. But what is this?

This provision requires the child’s parents to agree that if they have the child in their care but will be unable to provide care for the child/children, that they first offer the other parent the option to care for the child prior to considering asking a different family member or arranging a child minder. In all cases, as much notice as possible should be provided so that arrangements can be made.

This right of first refusal involves an element of communication between the parents about their schedules; however, as a word of caution this approach is generally better used for longer periods of contact, for example if the absence is likely to be more than a day. If it is just a matter of hours it can lead to extensive discussions which can over complicate arrangements and cause further difficulties.

This right of first refusal can be a very effective tool for addressing and resolving parental concerns and providing stability for all parties involved – most importantly for the children. When used effectively it assists parents and children alike in both the transition through a separation and also establishes a good foundation for co-parenting moving forward.

It is generally the belief that prevention is often better than cure. That said, for any parenting plan to work there needs to be a degree of flexibility to accommodate changing circumstances and the child’s best interests as they grow older.

Published on 3 June 2019

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