17 Apr 2024
17 Apr 2024
You will have frequently heard on the television mainly in soaps and dramas references to “custody”, “residence”, “access” or “contact” when discussing arrangements in relation to children, however these terms are no longer used in the family courts.
Once referred to “custody and access”, “custody” was formerly the bundle of rights and responsibilities that parents (and sometimes others) had in relation to a child. “Custody” which featured in various statutes, has now been replaced by the concept of “parental responsibility” introduced by the Children Act 1989 and therefore the term “custody” has not been used since then. “Access” was formerly known as you and your partner agreeing times and days that you will spend with your child.
“Parental responsibility” is all the rights, duties, powers, and responsibilities that by law a parent of a child has in relation to the child and his or her property. The concept was introduced by the Children Act 1989 and was intended to reflect a shift away from the idea of parental power. Parental Responsibility includes bringing up your child, having contact with your child, protecting and maintaining your child, determining your child’s education and religion, consenting to your child’s medical treatment, consenting to adoption and naming and appointing a guardian for your child.
Not all parents have parental responsibility for their children. If parents are married, both automatically have parental responsibility. Where parents are not married, the father will automatically have parental responsibility provided he is registered as the child’s father. Otherwise, an unmarried father will not have parental responsibility unless he acquires it either by agreement with the mother or by applying to the court for a Parental Responsibility Order. Both parents retain parental responsibility on divorce.
“Custody and access” were then replaced with “residence and contact”. “Residence” was formerly an order made by a Court to settle the question of who is to provide accommodation and day-to-day care for a child. Where the child is to live is now regulated under a Child Arrangements Order as introduced by Section 12 of the Children and Families Act 2014.
“Contact” was formerly a Court Order requiring the person with whom a child is living to allow the child to visit or stay with the person named in the order (typically the other parent). “Contact” is now regulated under a Child Arrangements Order, as introduced by Section 12 of the Children and Families Act 2014.
As mentioned above these terms “custody”, “residence”, “access” or “contact” are now known as Child Arrangements and have been since 2014.
A Child Arrangements Order can regulate when and with whom a child is to “live with” (the resident parent), “spend time with” (the non-resident parent) or otherwise have contact with. This order replaces the former “residence and contact” order, the intention, to move away from the potentially loaded terms and to focus attention on practical issues concerning the day-to-day care of the child.
A Child Arrangements Order is typically made where parents are usually in dispute and cannot reach an agreement on how to look after the children. As parents you are responsible for your child’s health, safety, and wellbeing. The law is focused on protecting your children’s rights and making sure they have a relationship with both parents, unless there are reasons not to, for example, if the children are at risk of harm. In all cases the Court’s decision must be based solely on the best interests of the child.
The Child Arrangements Order will usually determine with which parent the children will live. In some cases, however, the Court can order that a child live with a person or persons other than a parent, for example, grandparents. The Court also has the power to specify the amount of time the child is to spend living with a particular parent. This can range from providing that the child live full time with one parent to ordering that the child spends, for example, weekdays with one parent and weekends with the other. There is no presumption that the child’s living arrangements or contact time should be split equally between the parents.
The Child Arrangements Order can also determine the amount of contact the child is to have with a parent by non-physical means, such as letter, cards, telephone, email, WhatsApp, or Facetime calls.
The parent with whom the child is living will usually make most day-to-day decisions about a child’s upbringing and is not obliged to consult the other under the Children Act 1989; for this reason, it is important that the child arrangements order is clear on points that might give rise to dispute, for example, taking the child on holiday. Case law, however, does support the view that certain matters require consultation, such as a change of school, changing your child’s surname, or a decision to circumcise a child.
In circumstances where the children are at risk of harm, orders can provide for contact to take place a Child Contact Centre rather than the home of a parent. Again, the Court’s decision must be based solely on the best interests of the child, the welfare test, but there is a presumption that the involvement of each parent in the life of the child will further the child’s welfare.
There is a judicial presumption (predating the statutory one) in favour of contact being in the child’s best interests, but each case must be decided on its merits and in some cases the fundamental and emotional need of a child to have contact with both parents might be outweighed by the depth of harm the child might suffer.
A case study determined that contact between parent and child is a fundamental element of family life and is almost always in the interest of the child. It should only be terminated if it will be detrimental to the child’s welfare. Where a parent is violent, the court must carefully weigh up the risk against the positive benefits of contact, and of particular importance will be the willingness of that parent to change their conduct.
For more information or if you have any questions, please get in touch with our family law team today.
