Ian Walker – Child Law Specialist Solicitor and Mediator
The Children Act 1989 introduced Residence and Contact Orders.
Residence Orders determined where a child resided (lived).
Contact Orders determined when and how a child spent time with a parent and other important family members who they were not residing with.
Before Residence there was Custody
Residence Orders and Contact Orders replaced Custody Orders and Access Orders. The orders did the same thing, but the terminology of Residence and Contact was different, and also an improvement.
The idea of the Children Act was very much to modernise the law relating to children. This revised terminology was significantly more child focused and a vast improvement.
The problem with access and custody was that the terminology kind of suggested that a child was imprisoned or owned by one parent and the other parent was lucky to be able to access time with them. Also, the terminology was framed in a very adult way…. An adult had custody of the child; an adult had access to the child. Critics said that terminology suggested that the adult was more important than the child.
Placing the child first
The terminology for Residence and Contact Orders made clear that the child was centre stage. Now orders were framed with the child as the most important person (in line with other aspects of the Children Act). The child has contact with… The child resides with…
As well as the welfare principle (which is that the child’s welfare is the most important consideration in any decision making), the Children Act also contains the no order principle.
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When the court is considering whether or not to make one or more orders under the Children Act 1989 with respect to a child, it must not make the order unless it considers that doing so would be better for the child than making no order at all.
Note the use of the word must.
The underlying idea was to encourage parents to talk and to agree arrangements rather than the default position being that the parents needed to have a court order which set out what their arrangements would be.
Pre-Children Act Orders were often that parents would have joint custody of their children and/or that one parent had custody of the children and the other parent had reasonable access.
The no order principle remains in place, but over time there was increasing pressure for joint residence orders. Whilst terminology is important – the importance to parents as a point of contention as to who had residence (a residence order) and who had contact (only contact),(and why not joint residence?) started to become a distraction. They original point of the no order principle was to encourage parents to sort out reasonable arrangements without having to involve the court.
The Children and Families Act 2014
In April 2014 the Children and Families Act 2014 came into effect. This amended the Children Act.
In particular the Children and Families Act 2014 removed from the Children Act the definitions of residence order and contact order. Residence and Contact Orders were replaced by Child Arrangement Orders.
A Child Arrangement Orders is an order relating to:
whom a child is to live, spend time or otherwise have contact with, and
when a child is to live, spend time or otherwise have contact with any person
Child Arrangement Orders will say that a child lives with one parent and spends time with the other parent. But a child arrangements order can also say that a child lives with one parent (in a defined way) and then lives with the other parent (in another defined way). A child living with both parents under a child arrangements order does not mean 50/50 time (although it could do).
Children living with both parents for different periods of time in a week reflects the reality/practicalities of life but is much less likely to diminish (in the eyes of one or both parents) the importance of the parent with whom the child spends less time. Even with Residence and Contact Orders the parents who had Residence could use the tag of residence to diminish the role of the other parent (in circumstances where the parents could and should be working together).
Residence Orders are no more
So, Residence Orders are no more.
Language is important and the move to Child Arrangements Orders has been a step forward.
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