The Children Act 1989 which deals with cases involving disputes between parents will be amended on 22nd April 2014 to include the new term “parental involvement” and will change the names of certain court orders.
“Custody” and “access” were abolished when the Children Act 1989 into force and were replaced by “residence” and “contact”. The reason for the change at that time was to get away from terminology which suggested that one parent may have ownership of a child and the other parent only has lesser visitation rights. A residence order names the person with whom a child lives, and a contact order sets out the times the child spends with the non-resident parent.
The Children Act also brought in the concept of parental responsibility. This encompasses all the rights and responsibilities associated with being a parent; for example, the right to give consent to medical treatment.
The way we describe the law is that it is children who have the “rights” and parents have “responsibilities”. It is the child’s “right” to have a relationship with both their parents provided that it is in their “best interests”.
A child’s best interests are determined with reference to the “welfare principle”. The Children Act contains the “welfare checklist” which sets out the factors a court takes into account. This list includes: the child’s wishes and feelings; their physical, emotional and educational needs; their age, sex and background; the effect of any change in circumstances and whether they are at risk of suffering any harm.
The new law contains a presumption that the “ involvement” of both parents will further the child’s welfare unless the contrary is shown. This is not a legal presumption that care of the children should be shared, but rather enshrines in law that it is in a child’s best interest for both parents to be involved in their lives.
The other marked change is that the terms “residence” and “contact” shall disappear and be replaced by “child arrangement orders”. A child arrangement order may “name the person with whom a child lives, spends time or otherwise have contact” or “when a child may live, spend time or have contact with any person”. This is taking further the thinking behind the original Children Act which is to get away from the idea that one parent has more control over a child than the other.
The Government’s stated aim is to “send an important message to parents about the valuable role which they both play in their child’s life…” and to “…encourage separated parents to adopt a less rigid and confrontational positions with regard to arrangements for their children”.
Whether this will have a real impact on decisions of the family courts is not clear. Apart from the legal language, our advice as family lawyers is unlikely to change.
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