Residence and Contact – That’s old news!
When the Children Act was introduced in 1989, residence and contact replaced the previous terms “custody” and “access”. Despite this happening over 25 years ago, I still get clients today asking about “access” to their children. It is therefore likely to confuse people even more when they learn that as from 22 April 2014, residence and contact orders have been scrapped in favour of “child arrangements” orders. What does this mean and is it a change for the better?
The Children & Families Act 2014 was introduced as part of the re-launched family justice system implemented on 22 April this year. The Act replaces “residence” and “contact” orders with “child arrangements” orders in an attempt to remove labels which often left one party to a separation feeling like they had lost. In many cases one parent was granted residence of the children whilst the other had to settle for contact.
As from the autumn of 2014, the Children and Families Act will insert new provisions into the Children Act, requiring the court to presume that the involvement of both parents in a child’s life will further that child’s welfare, unless the contrary is shown. However, those provisions are not yet in force. The Ministry of Justice has said that is to “allow time to raise awareness and understanding” of the change. These new provisions are consistent with the new terminology. Reference to “child arrangement” orders instead of “residence” and “contact” does not prioritise through language one parent over the other. However, in practice, child arrangements orders are likely to have the same practical effect as residence and contact orders. A child arrangements order is an order which will set out arrangements relating to (a) with whom a child is to live, spend time or otherwise have contact, and (b) when a child is to live, spend time or otherwise have contact with any other person.
A major aim of the Children Act was to improve the procedures which govern how the courts work encouraging a friendlier atmosphere. The Children Act has now been supplemented by the Child Arrangements Programme (the “CAP”) also issued on 22 April 2014. The CAP applies where a dispute arises about arrangements concerning children. It is designed to assist families to reach safe and child-focused agreements for their child, where possible out of the court setting. If parents are unable to reach agreement, and a court application is made, the CAP encourages a swift resolution of the dispute through the Court.
From 22 April 2014, all family work will be dealt with either by the Family Court or the High Court. The Family Proceedings Court no longer exists and the Magistrates’ and County Courts are no longer able to accept family work. However, because the Family Court can sit anywhere parents will probably find themselves still going to their local Magistrates’ and County Courts.
The Family Court is intended to create a much simpler system. Upon receipt of an application, the paperwork will go to a “gatekeeping team”. A district judge and justices’ clerk will look at each application and then allocate it to the appropriate level of judge to deal with. A First Hearing Dispute Resolution Appointment will then ordinarily take place in week 5 following the issue of the application. The aim is judicial continuity and a quicker outcome.
Persons wishing to enter into contested proceedings must first see a mediator at an appointment to assess suitability and give information (apart from in certain situations where, for example, there is a recorded history of violence). This is called a Mediation Information and Assessment Meeting (“MIAM”). On 22 April 2014, this requirement was strengthened and given statutory force by the Children and Families Act 2014.
There is no doubt that the changes brought in by the Children and Families Act were designed with the intention of reducing the divisive nature of disputes regarding the children. This can only be a good thing. However, whether or not these changes work in practice remains to be seen.
The author: Sarah Orrell
