Family justice review recommends change for children

22 Nov 2011

More than 22 years after the inception of the Children Act 1989, when describing the arrangements for the children of separated or divorced parents, the public and media continue to use the terms "custody" and "access" which were abolished by the Act. Those terms conveyed the message of "ownership" of a child and gave the impression of greater control to the person who had the benefit of a Custody Order.

Whilst it was intended, with the introduction of the Children Act 1989, that parents would agree the arrangements for their children themselves, with the Courts only becoming involved in the event of a dispute, lawyers have found themselves advising clients not to fight over a label and Judges have frequently found themselves having to make decisions that should properly be made by the parents themselves.

So will a new title make any difference to the provisions that already exist in the Children Act 1989?

A Residence Order settles the arrangements to be made as to the person with whom the child is to live and a Contact Order requires the person with whom the child lives to allow the child to visit, stay or otherwise have contact with the person named in the Order.

It is suggested that a "child arrangements Order" should make provision for where the child shall live and the arrangements for the child to be with the other parent. The intention being that parents would enter into a Parenting Agreement between themselves and only resort to an application to Court if an agreement could not be reached. From a practical perspective, therefore, it is unlikely that a "child arrangements Order" is going to do any more than the existing Residence and Contact Orders. From a psychological perspective, however, it is intended that removing the terms "residence" and "contact" will go some way to enabling parents to focus on the day to day arrangements and foster the ideal of co-parenting rather than the parent's status.

There are some serious practical implications that must be considered by the Government before any change can be made to the current provisions of the Children Act 1989 and it is doubtful that the proposed amendments will come into effect in the near future. However, research has shown that when parents are able to agree their arrangements, the children are much better able to manage the change in their circumstances. It is hoped that if arrangements can be agreed and recorded in a Parenting Agreement, disputes at a later stage can be minimised or even avoided altogether. Parents, therefore, should be encouraged to consider the future arrangements for their children and, where possible, enter into an agreement preferably before or at least shortly after separation.

For further information or assistance on the preparation of a Parenting Agreement, please contact Dawn Gore on 01722 426945.