As the Children and Families Act 2014 has now received royal assent, Alison Dukes Family Law Specialist with AMD Solicitors, considers some of the important changes that have been enacted.
Having started in practice in 1986 I have seen several changes in the terminology used in children’s cases, although clients often still refer to some of the historic terms when seeking advice. When I was first in practice the important terms were “custody” – either sole or joint – “care and control” and “access”. Parents who had “joint” custody were expected to discuss important issues in a child’s life together. The child would live with the parent who had “care and control” and then have “access” to the other parent. With the advent of the Children Act 1989 came “parental responsibility”. All mothers have parental responsibility as, since December 2003, have all fathers registered on their children’s birth certificates. Parental responsibility can also be acquired if the mother and father are married or by entering into a Parental Responsibility Agreement or by court order.
The other terms under the Children Act were “residence” – with whom a child lives – and “contact” which replaced the former “access”. Residence could be “shared” even in cases where the number of nights a child spent with each parent was unequal.
The Children and Families Act will remove the terms “residence” and “contact” and in their place a court will make a “Child Arrangement Order” regulating with whom a child will live, spend time or otherwise have contact. The hope is that this will remove any appearance that there is one parent who has most of the involvement with a child while the other parent’s role is more peripheral. It should also mean that there will be an end to arguments as to whether or not there should be “shared residence” orders.
The intention behind the Act is to underline a commitment to both parents being involved in a child’s life. A court will presume that involvement of a parent in a child’s life will further that child’s welfare unless, of course, there is evidence that a child would be at risk of suffering harm from any form of involvement with a parent. This provision is significantly watered down from talk a few years ago of parents having a right to equal contact and it remains to be seen what difference the proposed commitment to both parties being involved in their children’s lives will actually make in practice.
Under the provisions of the Act it will also become a requirement for anyone wishing to apply to the courts for a Child Arrangement Order to first attend a Family Mediation Information and Assessment Meeting known as a MIAM. It is to be hoped that separated parents who are at odds over issues relating to their children will seek the support of mediation as early as possible. Once one or other has already decided to take the matter to court it seems less likely that they will be persuaded not to take that course.
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