Any parent contemplating separation or divorce could be forgiven for being confused about the position concerning their children. Many people still think of “custody” and “access” even though that terminology has not been in official use since the Children Act 1989 came into force. The Act introduced the concept of residence i.e. where and with whom a child would live and contact i.e. the amount of time a child would spend with the parent with whom they were not residing.
The Children Act also introduced the concept that in many cases there should be no orders for residence and contact in divorce proceedings. Indeed there was a no order presumption unless an order would be in a child’s best interests. Both biological parents would in most cases however share parental rights and duties. This was known as Parental Responsibility (“PR”)
The purpose behind this part of the Act was to try and remove the arguments about where a child would live and certainly how much contact they should have with the other parent. It was recognised that a system that had fluidity and did not make court orders which encourage people to become positional could have many advantages.
However, despite the worthy aims of the Children Act the Act has not worked so well in practice. Whilst at one time judges were reluctant to make orders because of the no order presumption over the years this has been watered down somewhat so that courts would frequently make orders where the parties were in dispute.
Over the years since the Children Act came into force it has been found increasingly likely that in some cases the Court will make a shared residence order. A shared residence order is what is says on the tin i.e. an order where a child will live with both parents. This does not have to be a 50 -50 split. If a court makes such an order then it has to specify the amount of time a child will spend with each parent.
Although there has been an increasing trend for shared residence orders to be made a shared residence order is “not yet the rule rather than an exception” contrary to the view expressed by Mostyn J in the case of AR (A Child Relocation 2010)
In March 2010 the Labour Government appointed a board led by David Norgrove to carry out a review of the family justice system. The board’s final report was published in November 2011. So far as shared residence was concerned the conclusion of the review was “no legislation should be introduced that creates or risks creating the perception that there is parental right to substantially shared or equal times for both parents”.
However for whatever reason the government in the draft bill chose not to follow Norgrove’s recommendations.
The new proposal is for the terms contact order and residence order to be omitted from the Act and be substituted by a “Child Arrangements order” which means an order regulating arrangements relating to any of the following:-
- With whom a child is to live, spend time or otherwise have contact; and
- Where a child is to live, spend time or otherwise have contact with any person.
This proposal has been criticised by a number of organisations.
The Law Society does not object to the Child Arrangement Orders (CAOs). Feeling that moving away from terminology that implies there is a winner and loser is a positive. However the Society holds the view that any starting point is likely to impact on the application of the principle that a child’s welfare is paramount. The Law Society fears that the intended effect of the proposed legislative changes is to ensure that one factor, the parent- child relationship post-separation, is given greater prominence by the courts when they make the welfare assessment.
The Society has concerns that CAOs set out to specify with whom and when a child is to “live, spend time, or otherwise have contact” Which the Society fears will create a new hierarchy of expectation based on “live, spend time or otherwise have contact”. The Society is in favour of simpler wording” spend time or communicate with”.
The Office of the Children’s Commissioner for England welcomes the intention behind the consultation i.e. that children should continue to benefit from their parents’ involvement in their lives after separation and divorce. However their response makes the following points with:-
- There is no evidence to support a change in the law.
- The current principle under the Children Act that the welfare of a child is paramount ensures that decisions are made without general presumptions and which are in the interest of each individual child.
- The proposals raise the prospect of an increase in disputes around the suitability of the father (mainly) to have substantial contact with the child which would divert attention from the focus on the child’s needs.
The government also appears to have overlooked the fact that such schemes introduced in Australia and Denmark have not worked.
For a different but well considered view see the Families need Father’s website on Shared Parenting.