The Courts Approach
The advent of the Children Act 1989 changed the arrangements relating to custody, care and control and access, as they used to be called. The Act introduced three new arrangements in connection with children namely, residence, contact and Parental Responsibility. Although the Act is over 20 years old, people tend to confuse the terminology although, broadly speaking, they mean the same thing. Unfortunately, there has been yet another change that the government have introduced with the Children and Families Act 2014 which came into effect on 22 April 2014 and introduces the concept of “Child Arrangements Orders”.
In brief, a Child Arrangements Order is defined as an Order regulating arrangements relating to with whom a child is to live, spend time, or otherwise have contact, or when a child is to do so and it is important to keep in mind the different types of Child Arrangements Orders. In short, a Child Arrangements Order can be either a Residence Order or a Contact Order. A Residence Order was an Order under the old law which determined where a child was to live. A Contact Order set out the types of contact and the frequency of it. They are now one and the same under the heading of “Child Arrangements Order”.
Parental Responsibility is shared jointly between all married parents, even after a divorce, so long as the child is under 18. Unmarried fathers can acquire Parental Responsibility either by agreement with the mother of the child or by Order of the Court, and now, if the father’s name is on the Birth Certificate of the children.
The court also has power to make two other types of order, namely prohibited steps and specific issue orders. A prohibited steps order limits when certain parental rights and duties can be exercised. A specific issue order contains directions to resolve a particular issue in dispute in connection with the child. A prohibited steps or specific issue order could be obtained where there is a dispute as to the child’s education, determining whether the child can be taken abroad, or preventing a parent from seeing the child.
The court will give the following three principles the highest priority:
- The children’s welfare is of paramount importance;
- The court shall have regard to the general principle that any delay is likely to prejudice the welfare of the children; and
- The court shall not make an order unless it considers that doing so would be better for the children than making no order at all.
In deciding whether an order should be made, the court will have regard to:
- the ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding);
- the child’s physical, emotional and educational needs;
- the likely effect on the child of any change in his/her circumstances;
- the child’s age, sex, background, and any other characteristic which the court considers relevant;
- any harm which the child has suffered or is at risk of suffering;
- how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
- the range of powers available to the court under the Children Act in the proceedings in question.
Under the Children Act, the court will only make a formal residence order, or any other order, if there is a dispute – otherwise no order will be made. There is also a presumption that the court should not intervene unless it is in the best interests of the child. When making any decision, the court’s paramount consideration is the welfare of the child. The court recognises that delay is likely to be harmful to the child’s welfare, which is entirely separate to the delay when listing a matter for hearing if the court calendar is exceptionally heavy or busy. If the matter is urgent, then it is possible to request an early date due to the nature of the application.