Most of us remember from childhood Hans Christian Anderson’s story of the Emperor’s New Clothes. The Emperor was a vain and self-important man, and two swindlers saw through him. They told the Emperor that they were dressing him in a suit of the finest cloth, which would be invisible to those who were unfit for their jobs, stupid or incompetent.
The Emperor was too vain to say that he could not see his new suit, and when the Emperor paraded before his subjects naked, each of them was too afraid of losing his job (or something worse), until a child called out “the Emperor’s got no clothes on!”
When I started out in practice, senior solicitors would, really quite often, shake their heads and tell me that they remembered when residence and contact orders were called custody and access, firmly dating their early practice before the coming into force of the Children Act in 1989.
The change from ‘custody’ to ‘residence’ was intended to reflect a different approach; that rather than one parent having ‘custody’ and ownership of a child, orders should reflect where a child would live (reside) and how they would see the parent they did not live with. Whilst the terminology of residence and contact has been in place for around 25 years, on a regular basis I have had calls from clients asking about obtaining “full custody” of their children. The idea of one parent having overriding control following the ending of a relationship has persisted.
Much of the Children and Families Act 2014 came into force on 22 April, and amongst sweeping changes to family law abolished the old residence and contact orders, replacing them with ‘child arrangement orders.’
So what does this mean? After seven years in practice I, too, will be shaking my head at the next generation and telling them that I remember orders they consider obsolete. No doubt, there will continue to be calls from clients who want “full custody” of their children.
For those now asking the Court to resolve the arrangements for their children, the new Child Arrangement Orders are defined in the following way:
A ““child arrangements order” 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
- when a child is to live, spend time or otherwise have contact with any person
The message is clear: the Court can define the arrangements for a child to spend time with each of his or her parents, but neither parent is to be seen as in control of that child.
This is reinforced by further new legislation (yet to come into force) which enshrines within the Children Act (as amended) the principle that the Court is to presume, unless the contrary is shown, that involvement of a parent in the life of a child will further the child’s welfare. The starting point for the Court will be that there should be some sort of contact (direct or indirect) unless involving the parent in the child’s life will put them at risk of suffering harm.
It’s easy to be dismissive of changes in terminology as ‘political correctness’ or ‘the Emperor’s New Clothes’ – and maybe with only just about two months’ experience of the new orders, it’s too early to say whether this change in terminology will have the effect its framers intended of finally sweeping away the idea of one parent having “full custody” and control of a child.
The law remains clear that there will be circumstances where a child cannot see a parent who would put them at risk of harm. But perhaps there is value in terminology which starts from a point of recognising the role which both parents can play in the lives of their children and avoids prioritising one over the other. A child was honest enough to say that the Emperor had no clothes, and children subject to these orders will recognise whether the new terminology is simply words or reflects a different approach.