Sunday, 20 April 2014

Misconceptions about the new Child Arrangements Orders

Child Arrangements Orders are already causing confusion. Note... Child Arrangements Order to be accurate (not Child Arrangement Order).

There is a belief that the concept of residence and contact has been abolished. This was the intention when it was proposed there be a single order to settle child arrangements, but the concepts of residence and contact remain... it's just rather than being set out in two separate orders, they're now contained in the one.

While the word residence isn't used in the new Children Act 1989, the words 'with whom a child lives' replaces it [Ed: isn't this the same?] and contact is replaced by 'spend time with or otherwise have contact' [Ed: erm... contact surely?].

It's hardly surprising that advisers and litigants are confused, when a Conservative MP who's been pushing for shared parenting claimed that the Conservatives delivered on their manifesto commitment. Nonsense... If you see that same MP in Westminster naked, no doubt he's purchased a very expensive suit, which only appears invisible to the foolhardy. Hans Christian Anderson could have written for this Government.

The only new presumption in the Act is a woolly desire that parents are involved in their children's upbringing so long as it is safe? Surprising to see an MP drunk on success when the liquour is no stronger than water. That involvement can be anything from having the child live with you to a one way letter, once a year. Is that shared parenting? 

Erm... was such weak wording a necessity? Are we to assume that the court was either awarding contact when it was unsafe... or awarding more involvement than a letter once a year? Will the wording cause any attitude shift. Of course not when it's so limp.

Remember one court order instead of two, but little else changed, and you won't be far wrong with understanding changes introduced by the new Child Arrangements Order. 

If I have a contact or residence order, do those orders still stand? 

Yes. However you'll be treated as if you are named in a Child Arrangements Order BUT... your status will still be as a person with whom the child lives, or a person with whom a child visits or otherwise has contact, and the legal rights conferred by each ARE NOT the same. So practically, you're still the resident or non-resident (contact) parent, and it makes no difference whether you have your existing order or the new one... only the name has changed.

If I've applied for a contact or residence order, do I need to make a fresh application?

No. If you applied for residence, you're applying to be a person with whom the child lives, and if you're applying for contact, you're applying for your child to spend time with you. Whichever is granted will be set out in a Child Arrangements Order rather than in a separate contact or residence order.

Do I gain parental responsibility if I'm named in a Child Arrangements Order?

Unless you already had it, only if you're named as the person with whom the child lives. Not if you're named as someone the child spends time or otherwise has contact (unless you already have parental responsibility through some other avenue).

If I'm a non-resident parent, or I get a child arrangements order naming me as someone with whom the child spends time and/or has contact with, can I take the children abroad on holiday for up to one month?

Only with the consent of the parent with whom the child lives (as named in the Child Arrangements Order).

Can the parent with whom the child lives take the children abroad for up to a month without my consent?

Yes, absolutely, unless of course you're also named in a Child Arrangements Order as someone with whom the child lives, but not if you're named in the Child Arrangements Order as someone whom the child spends time, even if it is overnight every week. Not all people named in Child Arrangements Orders are equal.

...and they thought it would be confusing to have parents treated as parents with an assumption of shared parenting (not the same as equal parenting time). Nice to see tey came up with such a simple alternative [Ed: any politicians reading this, please note this is sarcasm].

So why abolish contact and residence orders if nothing's changed at all?

Search us. You'd have to delve into the murky minds of MPs and Lords who are masters of looking like they're running while actually standing still. People wanted change... they didn't, or didn't understand it or understand why, so they fudged it, making it more complex, not less, or they just didn't read what the civil servants wrote. [Ed: We may be unfairly accusing dogmatism and/or stupidity when laziness was the culprit]

Words and the number of pieces of paper have changed (more words, less paper), not rights or status. The litigious warfare which the abolition of contact and residence was meant to achieve was destroyed by the stupid or dogmatic (or both). If this seems overly harsh... why?

As the kids would say... FAIL!


The one area where there is some change is in enforcement, and the enforcement measures will now apply regardless of whether the child lives with you or spends time with you. It was an oddity that parents with a shared residence order could not apply for the same enforcement measures as a non-resident parent. Now corrected.... [Ed: good grief, all that redrafting and something DID actually change].

If a child stays overnight, surely they live with me for part of the time?

Commonsense would say yes... but don't expect it to be universal. Don't assume it, as the rights conferred to those with whom the child lives and spends time with are not the same!

Our new guides, the forms etc will be published on Monday night, in time for the changes. Included are the new rules for mediation, court bundles etc, and the launch of our new family law web app. Watch this space...