When an access order is put in place upon divorce, the parties often believe that it will be easy to sort out the arrangement for Christmas access. Mum is to have the children the first Christmas, dad the next and so on until the children are grown up or until 18.

But these arrangements have a habit of falling apart.

It is during the holiday season that parents often become further estranged from each other. Often, tensions rise until one parent tells the other that he/she wants the children this year or is entitled to them this year. Children also often say they do not want to go, or more precisely their parent does not want them to go, to the other parent.

What can the parties do?

Talk. It might sound obvious but few divorced couples actually do. If parents talk about the arrangements far enough in advance then any developing problems can immediately be dealt with.

Mediate. This involves a third party such as a qualified mediator who will attempt to facilitate an agreement that will at least take account of the feelings of both parties and place those feelings for resolution.

Discuss the issue with the children, provided they are old enough. Do not forget their wishes. Make sure that you do not pressure a child into saying something that may have the effect of alienating that child from one or both of its parents.

You can also apply by summons to the Supreme Court within the divorce proceedings seeking an order confirming the access arrangements or varying the arrangements.

Where one party refuses access in circumstances where the child or children is going to be taken abroad, apply to the court for an order permitting the removal of the children from the jurisdiction. The court will examine the circumstances of the request and will seek suitable undertakings from the departing parent.

You may also apply to Magistrates' Court for an order granting or confirming the access arrangements or varying the arrangement. This is more appropriate where the parties have not been married to each other.

Make contact with Family Services. They will probably be stretched during the Christmas season but they may be able to administer a workable solution.

All of the above procedures represent the processes by which these issues can be resolved. If a court does become involved, it will have to consider the evidence available and the prior conduct of the parties as well as the impact of that conduct upon the child/children. Sometimes there is outright hostility between parents which may have been founded on violence toward the parent or the children, or financial issues, e.g. delinquency in making maintenance payments or failing to reveal the true state of finances, or because a parent does not like the other's new partner.

The court will have to weigh the evidence and the effects of the conduct upon the child/children. If there are no rational grounds for the parent's hostility, access will probably be ordered. But it will not be ordered if it will create a serious risk of emotional harm to the child.

Sometimes it is not just a question of "who has the children this year", it is more a case of "can I at least see them/have them on Christmas morning?" The key to this issue, of course, is what happened last year. Did the other parent let you see them? If he did, is it reasonable to reciprocate this year?

If parents do not resolve access issues by early December, then any application to the court is going to be of an urgent nature - the court may not have personnel available at short notice and potential further delay could occur.

The parent applying for access/variation will need to support the application with a detailed affidavit of the circumstances of the reasons for the request/denial. That document will be served on the other parent who will have the opportunity to respond with his/her own affidavit setting out his/her position. There may be a need to involve third parties, Family Services or the Court Welfare Officer.

If the court is able to set a hearing, the parties attend and put their case - it is then for the judge to render a decision. Whatever the outcome, parents must always remember that the dispute between the parents is not a dispute between the child and its parents.

The parents who are having disputes over access must be aware that the court will arrive at its decision having the welfare of the children as its paramount concern. The court is not concerned with the feelings of the parents.

Attorney Kelvin Hastings-Smith is Manager of the Litigation Department at Appleby Spurling & Kempe. Copies of Mr. Hastings-Smith's columns can be obtained on the Appleby Spurling & Kempe web site at www.ask.bm.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer