Judicial Errors over CAP Draft Orders concerning living arrangements

In sympathy with the verbosely worded Children and Families Act, our headline should read 'the lack of need for decisions determining the person(s) with whom the child should live as part of applications for contact within child arrangements orders' but we thought you might nod off before you got to the interesting bits!

A discussion with a legal adviser this week raised an issue we've seen before, albeit since 2014 with the new twist of judges needlessly completing parts of the draft court order paperwork related to 'the person with whom the child lives' when only matters related to contact are at issue. So again, the question:

Does a decision as to residence need to be made prior to, or as part of, a decision relating to contact, when the court is making a child arrangements order?

The answer is no, but there is confusion, and confusion due to a judgment made without care (per incuriam) by Lord Justice Thorpe (now retired) in the case S (A Child) [2010] EWCA Civ 705 when he said (at paragraph 9):

"a contact order cannot be made unless it can be attached to a residence order providing there for a child to live with a person."

LJ Thorpe believed himself to be repeating comments made by Lord Justice Ward in 2001 in the case Re B (A Child) [2001] EWCA Civ 1968. However, in that case, LJ Ward was correcting a trial judge's error in oddly making a shared contact order, and Ward also commented that the more appropriate order would be one for shared residence.

Lord Justice Ward did however give clarification on the lack of necessity for a residence order when making a contact order, in the case Re G (A Child) [2008] EWCA Civ 1468. Thorpe's judgment, in the 2010 case was therefore made per incuriam (without care), as he failed to make reference to this later judgment by Ward, and misdirected himself. Indeed, in the 2008 appeal case, Lord Justice Ward had discharged a residence order on the grounds the trial judge havd made an unnecessary residence order (where the contact order WAS granted).

Judicial guidance contained within the 2008 judgment supports that the part of the new CAP draft order paperwork relating to 'the person with whom the child lives' need not be completed when contact is the issue before the court. Thorpe was wrong, and the courts today might need reminding of this history.

As for Lord Justice Ward and his wisdom, we'll leave you with further comments he made in that 2008 judgment on the 1989 wording of the Children Act, and one can only wish that that sentiment was echoed through the courts again and again, and repeated today:

17. The whole purpose of the Act in getting rid of the concept of custody and access, with concomitant thoughts that they each carry different rights and power and authority and regulation and control, all of that should have been swept away, so that you have an order which conveys no right but simply regulates a factual state of affairs. The rights over the child are now conferred by parental responsibility. Each has parental responsibility and each is as fully entitled to exercise that responsibility while the child is in his or her care as the other. So when the child is with father he will determine when she goes to bed, when she is to brush her teeth and what she is to eat for breakfast, and the mother has no power of control nor does he. So it is about time that those practical lessons were learned. Re G (A Child) [2008] EWCA Civ 1468

...as it's 2:46 in the morning, forgive me if I wax lyrical, and just in fun:

Oh distinguished, wise and noble Lord,
Don't heed old Thorpe but LJ Ward!

Shared Residence - Rumours of My Demise are Exaggerated

With the removal of residence and contact orders has emerged concern about whether the courts will see polar choices.... one parent named in the new child arrangements order being the 'person with whom the child lives' while the other parent will be 'the person with whom the child spends time or otherwise has contact'.

Does the new order mean that we've seen the death of shared residence? [Hyperventilate]

The anxiety is understandable as, under the old system, identical cases would have very different outcomes before different judges and in different courts. We know one ex President of the Family Court is opposed to children having two homes, who happened to be influential in House of Lords legislative debates... but remember, each judge may exercise discretion under the law, and there's nothing in the new Act wording which prohibits more than one person being named as having the child live with them.

As we've said before, we do not expect a huge change from the new legislation. It's a political fudge and a word change (at least when it comes to shared parenting or residence or contact being replaced by child arrangements orders).  The concepts of residence, shared residence and contact remain, just wrapped up in a single bit of paper.

So my friends... blow into that brown paper bag and bring the anxiety under control.

Draft orders suggest (quite clearly) that the option of the mother AND father having children live with them under a child arrangements order (albeit in different homes and at different times) can and likely will continue (albeit this will differ from court to court and judge to judge due to individual judicial discretion... no change there either... inconsistency will remain even when cases are identical).

My proof? A document called CAP04, setting out a draft structure for the new child arrangements order wording. At point 7, we clearly see the option for the court as either the mother, or the father, or both being named as the parties with whom the child[ren] will live.

I seem to recall Mr Justice Mostyn had a hand in the drafting of 'stock' order wording. Not all judges are stuck in 1970s parenting, and Mostyn has been quite clear in the past about shared parenting being common place.

As ever, the arguments will need to be advanced in favour of shared residence (albeit under a child arrangements order), and no doubt we'll still be citing the authorities of A v A, D v D and others for a good few years to come. So don't ditch your shared residence case law libraries (and we won't be ditching ours).


Now there is the risk that more cases will be shunted off to magistrates and legal advisers whose knowledge is not as great as more senior members of the judiciary, but it is YOUR job to remind them of the orders which can be made, and the authorities set down by the higher courts.

To read all of CAP04, click here.

To find our more about the new court process, child arrangements orders etc... open out web app by clicking the image below: