Custody, Residence and Child Arrangement Orders

What used to be called Custody and Access orders, which have since been termed Residence and Contact orders, will soon be replaced by Child Arrangements Orders.

On 22^nd April 2014, the Children and Families Act 2014 will replace the traditional terms used for the care of children between separated parents; with the apparent aim of trying to ensure such parents do not become too territorial about where their children should reside and when and where they should have contact with the ‘non-resident’ parent.

A Child Arrangements Order will instead focus on where the children will live and when and where they will spend time with each parent. The general consensus upon the law makers, judiciary and lawyers is that too often parents become hung-up on labels such as Residence and Contact, thereby shifting the focus to the individual rights of parents rather than what is actually in the children’s best interests.

Many consultations have taken place to establish how best to ensure that separated families continue to embrace the concept of shared parenting. It has been suggested in the past that it should be enshrined into law that each parent should have the right to be involved in their children’s lives. A number of family lawyers have argued that such an approach would have the danger of raising expectations amongst separated parents; that they will literally share the care of their children 50/50.

In recognition of this perception, the Children and Families Act 2014 will promote the presumption that both parents are to be involved in a child’s upbringing, unless there are exceptional reasons why this is not possible. The new section (1(2A)) of the Children Act 1989 will state that.

The court will therefore need to ask whether a parent can be involved in the child’s life, but in a way which that does not put the child at risk of suffering harm.

In practice, this is not actually too dissimilar to what is happening in the family courts already. Particularly in cases where there have been allegations of actual, or risk of, harm to a child, the court will be expected to determine whether that harm has in fact taken place; whether there is any such risk; and ultimately the extent to which a parent should be involved in the child’s upbringing as a result. It would be extremely unusual for the court to find that a parent should not have a meaningful relationship with his or her child if there were no risks to that child’s welfare and so it could be said that the presumption already (in theory at least) exists.

If you are considering making an application to court for an order regarding your children, therefore, be aware of the date for the change. Residence and Contact Orders will become non-existent from 22^nd April 2014. Many of the application forms and procedures will also change, not to mention the classification of the individual family courts. It is extremely important therefore to obtain some legal advice.

Emsleys has a dedicated family law team with solicitors who are experts in the law concerning your children. We have offices throughout Leeds and would be happy to advise you on any aspect of family law.

Please call 0113 201 4900 or email us at family.law@emsleys.co.uk to speak to one of our solicitors.