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Child arrangements orders and the abolition of residence and contact

From 22 April a number of significant changes in family law were introduced as the Children and Families Act 2014 came into force.

From 22 April a number of significant changes in family law were introduced as the Children and Families Act 2014 came into force. The Act introduces Child Arrangements Orders which will replace residence and contact Orders. A single child arrangements order will set out arrangements about who a child should live with, spend time with and have other types of contact with and when these arrangements should take place. The Government aims to “encourage separated parents to adopt less rigid and confrontational positions with regard to arrangements for their children."

There is however considerable doubt over whether parents will adopt this new terminology. Many separating parents still refer to ‘custody battles’ and ‘fighting for access’ although the terms  ‘custody’ and ‘access’ were replaced with ‘residence’ and ‘contact’ more than 20 years ago. The ethos behind the abolition of ‘custody’ and ‘access’ was to try to take the heat out of these loaded terms which had connotations of winners and losers and conveying children as the prize of  the litigation. As we move from residence and contact orders to child arrangement orders we will still need to record the parent with whom the children will live but arguably in less litigious terms.

The Family Justice Review considered whether to introduce a presumption of shared parenting but decided against this due to the risk of “creating an impression of a parental 'right' to any particular amount of time with a child". Instead the Act inserts a presumption that “involvement” of both parents in the child’s life will “further the child's welfare.’ "Involvement" means involvement of some kind, either direct or indirect, but not any particular division of a child's time.

Families now take many different forms and it may therefore be dangerous for separating parents to start from any preconceived expectations. The Family Justice Review raised concerns that in Australia similar reforms had led to increased numbers of shared care arrangements in cases where there were safety concerns. Whilst shared care may best meet the children’s needs for some families, in other cases the stability associated with the child living with one parent may be in their best interests. In some circumstances shared care may be unworkable or even detrimental to the children involved (court proceedings may be a necessary and important means to safeguard children and address their welfare needs). Whilst an emphasis on taking decisions together is to be commended an expectation of shared parenting may have adverse effects (even if this is unintentional). Meanwhile reference to ‘the parent with whom the child will live' will remain necessary just as separating parents are likely to continue to use the terms custody, access, residence and contact for many years to come.