Joanne Major, Principal of Top Divorce and Family Law Specialists, Major Family Law states in Accent: in April of this year, new legislation came into force which introduced Child Arrangement Orders. These Orders replace the existing residence and contact orders which the courts have been making since 1989. Indeed in popular parlance, some still refer to custody and access despite these legal terms having ceased to exist a quarter of a century ago.
The Child Arrangement Orders will clearly outline with whom a child is to live and when, and with whom and how a child is to spend time or otherwise have contact with the other parent or other person. There is also scope for the Orders to contain detailed provisions with regards to other aspects of the child’s life as required, eg. schooling.
As none of this is really new, the argument has been advanced that changing the names of the Orders is pure semantics and entirely pointless. This is an argument which undoubtedly carries weight with those who continue to favour the custody and access terminology.
There is more to the decision than just labelling, however, with the change intended to remove the perception that the parent awarded residence (with whom the child is to live) has in some way ‘won’ over the other parent and thereby gained some greater power or rights in relation to the children. In line with other recent legal changes, the provisions are also intended to encourage parents to reach an agreement in an amicable way rather than pursuing lengthy and costly litigation.
What is entirely new in this context is the introduction of a presumption of continued parental involvement, which became law on 22nd October. In future, the court will need to consider the presumption of continued parental involvement whenever it is asked to make a child arrangements order, as part of the welfare checklist it considers in relation to the child when determining what Order to make.
The effect of this provision is intended to be that the starting point in any matter relating to a child will be that both parents should continue to remain involved in the child’s life unless it is in some way contrary to the child’s welfare.
The Government has suggested that this will ‘encourage separated parents to adopt less rigid and confrontational positions with regards to the arrangements for their children’, and Sir James Munby, President of the Family Division, stated that the system must reflect the ‘reality’ that parties will no longer be represented by lawyers and that the courts will have to adjust accordingly.
Interestingly, some legal commentators think the presumption will actually have the opposite effect of what is intended, and create misunderstanding in parents where previously there was none: in real terms, despite the previous absence of the presumption written in law, Courts have always worked on the basis that it is in the child’s interests to have both parents involved in its life unless there are strong and compelling reasons for the contrary.
What may be – wrongly – construed by parents going to Court without legal representation, is that the new provision gives rise to a presumption of shared or equal parenting, where the child splits its time equally between the two parents. Whilst this is not an arrangement which is prohibited by the legislation, it certainly is not assumed to be the starting point.
Ultimately, it’s likely that in practical terms for the majority of people outside of the legal profession, the changes will go unnoticed. Whether the provisions assist in reducing conflict between parents remains to be seen.
For more information and advice on Child Arrangement Orders, contact our team of specialist solicitors at Major Family Law, the Divorce and Family Law Specialists, 12 West Road, Ponteland, Newcastle upon Tyne. T: 01661 82 45 82 www.majorfamilylaw.co.uk. Twitter: @majorfamilylaw