As is well known, the primary piece of legislation concerning the law relating to children is the Children Act 1989. But there has since been other legislation passed in relation to children law, including legislation that amends the Children Act itself. One such piece of legislation, and one of the most important since 1989, is the Children and Families Act 2014 (‘the 2014 Act’).
The 2014 Act is a lengthy statute, running to 140 sections and seven schedules. While we can’t cover all details here, the Act significantly impacted arrangements for children, addressing three crucial aspects.
It has long been recognised that family issues should best be resolved out of court, preferably by agreement.
Since the 1990s, mediation has been recognized as one of the most effective methods for couples to reach agreement.
The problem is that many couples are not aware of mediation, or that their case is suitable for mediation.
In about 2011 this was recognised by the introduction of Mediation Information and Assessment Meetings, or ‘MIAMs’ for short.
The MIAM informs the couple about mediation and assesses the suitability of their case for this process.
But initially attendance at a MIAM was not compulsory.
The 2014 Act changed that by stating that anyone wishing to make an application to the family court must first attend a MIAM, unless they are exempt from doing so, for example because they have been a victim of domestic abuse.
One of the more controversial reforms of the 2014 Act was an amendment to the Children Act.
The amendment introduced a requirement that, when considering an application to the court in relation to a child, the court must presume, unless the contrary is shown, that the involvement of both parents in the life of the child concerned will further the child’s welfare.
The reason that this was somewhat controversial is that it didn’t go as far as some people wanted. In some quarters, particularly those interested in fathers’ rights, it was argued that there should be a presumption that the child should spend equal time with each parent, unless there was a good reason why this should be so.
But the presumption of parental involvement didn’t say that. In reality, it is commonly believed that it had minimal impact on the courts’ decisions concerning children.
The last change in the 2014 Act that we want to mention is perhaps the most significant.
Again, this change amended the Children Act.
The Children Act introduced the terms ‘residence’ and ‘contact’, to replace the old terms ‘custody’ and ‘access’, which were considered to be outdated, particularly the word ‘custody’, which inappropriately implied physical ‘ownership’ of a child.
By 2014, the terms ‘residence’ and ‘contact’ were deemed outdated, with ‘residence’ implying a higher status for the parent with the order. It was thought that this perceived status made it more difficult for parents to resolve matters by agreement.
The Children and Families Act 2014 replaced ‘residence’ and ‘contact’ orders with the ‘child arrangements order’ in the Children Act.
A child arrangements order regulates with whom a child lives, spends time, and has contact, specifying when these arrangements occur.
Thus what was once called a ‘residence order’ is commonly referred to as a ‘lives with’ order. The term ‘contact’, still present in the definition of a child arrangements order, is commonly used for the non-residential parent.
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