Custody and Access
In mediation we sometimes hear parents talking about winning ‘custody’ of their children or gaining ‘access’ to them. Nowadays UK lawyers, judges and mediators no longer use these terms, in fact their use is actively discouraged. This is because of a change of emphasis in the law itself.
The 1989 Children Act promoted the use of concepts of ‘parental responsibility’ ‘residence’ and ‘contact.’ The aim was to shift parents from looking at their ‘rights’ to their children to their responsibilities towards them. And by ceasing to think in terms of ‘custody’ and ‘access’ it was hoped to break down the division between each parents’ role – ie the idea that one parent has primary responsibility for the children, and the other merely has ‘access’ to them.
The concept of parental responsibility is now central to UK children’s law. (For more information see our Factsheets 13). Parental responsibility is held by all married parents (and the vast majority of unmarried parents). The intention of the lawmakers was to encourage parents to reach agreement in respect of their children’s living arrangements, and the way in which decisions are made about the child’s life and education in the best interests of the child.
Residence and Contact Orders
In disputed cases the court had the power to make orders, in particular ‘residence orders,’ ‘contact orders,’ ‘ specific issue orders’ and ‘prohibited steps orders.’ The court is, however, under an obligation not to make an order unless it can be satisfied that making an order is better for the child than not making an order. The courts will take the view that, as a general rule it is better for children that their parents agree about living arrangements etc. rather than that such matters become the subject of court orders. So the court will normally only make orders in cases in which there is no chance of agreement being reached.
A major government commissioned report on UK Family Justice (The Norgrove Report) in 2011 looked at these kinds of issues in depth. It concluded that the basic structure of the law was sound, but that ‘residence and contact orders’ could be unhelpfully viewed as somehow equivalent to the outmoded concepts of ‘custody’ and ‘access.’
The whole intention of parental responsibility was to get away from the idea that one parent, because the child was living with them, was therefore somehow totally in charge of the child’s life.
As a result of the Norgrove Report there was considerable debate in the UK over whether shared care or equal parenting should be enshrined as a legal principle.
In fact the 2014 Children and Families Act did not introduce any kind of equal parenting principle into UK law, but it did place more emphasis on the obligation of parents with parental responsibility to arrive at agreements in respect of their children. ‘Residence’ and ‘Contact’ orders were abandoned in favour of the ‘child arrangement order.’ This is the order that would now be made in the UK family court in the event of a failure of parents to be able to agree about children’s living arrangements.
Why does this matter?
This shift in language matters because it goes against the concept of one parent being solely responsible for a child’s welfare and upbringing. This should in turn encourage parents not to see the a differences over proposed arrangements for children as a win/lose battle, something of course that we as mediators would encourage. The new language points to the idea that arrangements for children need to change over time as the child grows up and their needs change. It also reflects a significant and growing body of evidence that it is not the quantity of time that a child spends with each parent that is significant, but the quality of the relationship between the parent and child, and the fact that arrangements have been agreed on by parents in their child’s best interests. These are the key factors which will increase the long-term well-being of children of separating couples.