Once, back in the dark ages, the courts made custody orders determining with which parent a child was to live. In fact, when parents divorced the court would have to make an order of some sort in relation to the children. Inevitably the parent that got the custody order was deemed ‘the winner’. The perception was that the parent who did not have custody was stripped of their position as a parent. Judges grappled with this as best they could, splitting the concept of custody away from practical arrangements and so they moved on to using joint custody orders with ‘care and control’ to one parent. With hindsight, the use of the word ‘control’ was ill-advised because it embodies the problem, that being the perception that one parent was dominant.
Parental Responsibility Replaces Custody Orders
With The Children Act 1989, we had a clean sheet. Custody orders were no more. The concept of Parental Responsibility was created. This was defined as “all the rights, duties and obligations of a Parent.” If you were a parent with Parental Responsibility it could not get any better. Residence Orders and Contact Orders dealt with the practicalities of with whom a child was to have their primary home and arrangements for them to spend time with the other parent.
Turn the clock forward 20+ years later and we see that those terms have become as emotive and confrontational as the custody orders of old. We have tried phrases such as ‘shared’ or ‘joint residence orders’. They don’t work because, inevitably, there is an assumption that a share of a child must be an equal share for it to be fair. Fair to whom? Once parents are bogged down in a negotiation in terms of percentages, frankly all is lost. In most cases, it means they have lost sight of where their focus should be: trying to make the best of a bad job for their children.
Once More unto the Breach Dear Children
Our legislative masters are having another run at this problem. The Children and Families Bill 2013* is wending its way through the Parliamentary process.
The 2013 Bill* addresses a number of issues. It again emphasises the need for parents to agree co-operative arrangements for their children. There is nothing new here. It encourages parents to look at addressing issues in a non-confrontational way i.e. through mediation so that they do not have to come to court. Again, this is not a new concept. Mediation has been around for a very long time exactly for this purpose.
Mediation Embodied in Divorce
What is different is that mediation is now becoming embodied in the process. If you want to go to court over your children, you must attend a meeting to obtain information about the mediation process. You will not be allowed to opt out on an uninformed basis save for very particular situations. If you do, you will have to explain why to a judge. If he or she does not accept your reasons, they can send you back to give it a try.
The Bill* intends to do away with residence and contact orders and introduce a new ‘child arrangements order’ . The idea behind this is to encourage the parents to focus on the children’s needs as opposed to what they see as their own rights. A child arrangement order is defined as ‘an order regulating arrangements relating to any of the following: with whom a child is to live, spend time with or otherwise have contact with and when’.
Unfortunately, this sounds a bit too familiar. Spot the use of the word ‘contact’. Practitioners can already see the words within the definition of these orders which will draw the future battle lines for divorcing couples.
How to get the Judge to Agree to Everything You Ask
There remains one positive in all of this which the 1989 Act gave us. That Act did away with the obligation for a court to make some order relating to the children when their parents divorced. If you and your ex-partner sort out between you, as responsible parents, how life is going to work for your children when their parents are living separately, expect a Judge simply to tick the box agreeing with you. She or he will assume you know and love your children and have made the best arrangements you can.
Whilst dispiritingly familiar, any legislation that attempts on paper to take the acrimony out of disputes over children is to be welcomed. We must go forward with optimism, therefore, but in many cases the following is good advice: “You may hate/detest/be bored with/irritated by/frightened by/wish your ex-partner was a very, very long way away (delete as applicable) BUT your children love you both – cut them some slack!”
Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.
* The Children & Families Act 2014 received Royal Assent on 13 March 2014 and its provisions came into force on 22 April 2014.