Residence and Contact Orders: going soon!

From 22 April 2014 Residence and Contact Orders will be more

From this date provisions from the Children and Families Act 2014 will come into force. Amongst the provisions are amendments to the Children Act 1989, which will replace Residence and Contact orders with Child Arrangements Orders

Terminology is important

Before the Children Act 1989 came into force the court orders, which defined where the child lived and the arrangements through which a child saw the other parent were called Custody Orders and Access Orders.

Language is very important.Custody never meant that a child was being held captive by one of their parents. What custody did mean in terms of language was that the child was essentially a possession of their parents or parent; one parent was awarded the right of the child to live with them. The other parent was allowed to see the child.

Access = Visits = Visits by the permission of the dominant parent who possesses the child.

Not good terminology.

Joint Custody Orders

In those days, you also had Joint Custody Orders.

When divorces took place. It was normal for there to be a court order (in non-contentious cases) saying that there would be joint custody of the child/children (ownership by both parents) but with care and control to one of the parents.

This was not quite as bad as only one of the parents having custody, but by definition, in a joint custody situation, only one parent had came control. This meant that the other parent had no or limited control. Not very good terminology either.

These orders are about parents and not about children.

…and then came the Children Act 1989

Custody and access orders were the normal orders when I was studying law at University and when I went to the College of Law, and then when I started what was my solicitors apprenticeship (trainee solicitors were called article clerks in those days).

Much to the annoyance of my then boss who was also a specialist child law solicitor (and later a District Judge). I was the first fee earner in my then practice to be granted (or rather to have granted for a client), one of the then new Residence and Contact orders when the Children Act came into force in 1991. I  remember that it was an emergency application and that my client needed a Residence Order to make sure that the other parent didn’t try to abduct their child.

It was a long time ago and I have undertaken an awful lots of  Children Law since then. Indeed, it wasn’t until 1999 that I moved to work as a Family Solicitor in Exeter and we moved to live in Colyton in East Devon in 1999.

Residence and Contact

The terminology used in the Children Act was a massive step forward. The Children Act introduced four main orders, namely;

1. Residence Order
2. Contact Order
3. Prohibited Steps Order and
4. Specific Issue Order

With a Residence Order. The idea is that the court order states that the child shall reside with XXX.

This is much more child focused than saying that a  parent had custody of the child.

With a Contact Order, the order would say that the child should have contact with YYY and might then go on to say how and when. Again, this is much more child focused than an order saying that the parents should have access to the child.

The idea of the Children Act was to place the child at the centre of the decision-making process. Within the Children Act we have welfare principle which, although essentially a restatement of the general principles that were already in place, nevertheless, placed the child at the centre of all decision-making.

The idea that the needs of the child with the first consideration. The children act was and remains an excellent piece of legislation.

Before moving on. I would just re-cap, that a Specific Issue Order is an Order  which, as it suggests decides a specific issue. For example; what school the child should attend or if a child should have a certain vaccination. A Prohibited Steps Order is an Order, which prevents a parent from taking a certain step. For example, not bringing a child into contact with an undesirable friend or relative.

Joint Residence Orders

Over the years we have had the idea of Joint Residence Orders, which in some ways were a step back to the pre-Children Act,  Joint Custody Orders. In some situations,  Joint Residence Orders can be very helpful because they send a clear message that both parents are just as important, but in other ways, these orders have also been unhelpful as they undermine one of the other great principles in the Children Act, which is the No Order Principle.

Under the No Order Principle, the court should not make an order unless it is better for the child to make an order than to not make an order. In other words, there has to be a real need for the courts to intervene in the child’s life.

The expectation is that parents, or rather reasonable parents should be able to sort out the arrangements for their child together in a sensible way. The use of Joint Residence Orders has ebbed and flowed a little since the idea came about and a downside is that parents can view having a Joint Residence Order as a prize to be gained, almost as a badge, which is a distraction from what should be the real focus which is how the arrangements can work best for the child.

Child Arrangements Order

A Child Arrangements Order is hopefully a step forward, and will hopefully refocus parents on making arrangements which best meet the needs of their children

the amended children act states that section 8.1 that;

A Child Arrangements Order means an Order regulating arrangements relating to any of the following;

a. With whom a child is to live, spend time or otherwise have contact and

b. When a child is to live, spend time or otherwise have contact with any person

The Children Act has also been amended in Section 1, which is the section which includes the Welfare Principle with a wording saying;

that the Court should presume that unless the contrary is shown, that involvement of the parents in the life of the child concerned will further the child’s welfare.

This is a restatement of what the law already in fact says, but there is no harm in this being included as a reminder to anxious and sometimes warring parents.

A Child Arrangements Order

A child arrangements order should mean that the parents must focus entirely on the arrangements for the child.

The child is once again placed firmly at the centre of the arrangements. There is no prize of a Residence Order with the other parent only getting contact.

Making contact work

Good contact isn’t only about a piece of paper. Good contact is about the practicalities of how the arrangements work.

Firstly from the child and then for the parents. What children need is to be able to see important people in their lives, which should normally include both parents and their extended family and to be able to look forward to seeing family members and to be able to enjoy time with them and to be able to talk freely to all of their family about other parts of the family with all of their family being encouraging and supportive of the child.

Children do not need to witness arguments or back-biting or snide comments or parents messing each other around or violence.

Children are children and they need to be loved and nurtured by parents who are able to focus on them.  Children need to be able to relax. For a child to be relaxed means that the parents need to be relaxed as well, or at least as relaxed as possible. In my experience, mediation is often (but not always) the best route to achieve this.

I say not always because sometimes parents are dangerous both to the child and to the parent with whom the child lives need first and foremost to be safe. If there are no significant safety issues than mediation is often the best route.

But the new order is a good thing. Roll on 22 April 2014