The Children and Families Bill 2013 – the end of residence and contact by Jennifer Hollyer

Children|Family Law|Stowe Family Law|November 24th 2013

In the first of two special features, Jennifer Hollyer of the Stowe Family Law LLP Leeds office considers changes set to be introduced by the Children and Families Bill.

One of the most gut-wrenching aspects of separation and divorce is coming to terms with the idea that arrangements will have to be made with respect to the children and the resulting realisation that this may mean that both parties are unable to spend as much time with them as they once did.

Children law has been a thorny issue for a very long time and this is unlikely to change any time soon given that it is so emotionally charged.

Currently, the Children Act 1989 sets out three key principles for all children cases:

  1. The children’s welfare is the paramount consideration.
  2. There should be minimum intervention by the courts – i.e. there should be no order unless it is absolutely necessary and in the best interests of the children.
  3. The importance of ‘parental responsibility’.

There have been a lot of arguments since 1989 for and against the idea of amending the Children Act to include some kind of presumption that both parents should be equally involved in the children’s lives.

A new piece of legislation is currently winging its way through parliament which will amend the Children Act but this will not go so far as to say that parenting is to be shared.

The Children and Families Bill is currently in the House of Lords and rumours have it that the new law will become effective in the spring of 2014. This will be at around about the same time as the implementation of the Single Family Court, as set out in the Crime and Courts Bill.


The Family Procedure Rules 2010 introduced a new focus on mediation and at least attending a ‘mediation information and assessment meeting’ (MIAM). However, this was not compulsory and it placed a lot of trust in lawyers and the courts to encourage this.

The government is now taking a step further by stating in this new legislation that “Before making a relevant family application, a person must attend a family mediation, information and assessment meeting”.

Particularly in private children law (that is to say, cases not involving the local authority and care proceedings), it is hoped this requirement this will reduce the number of cases which actually reach the front steps of the court. If mediation is successful then it will mean a quicker, more amicable, less stressful and cheaper result. Further, it is widely believed that if parents can agree on arrangements for children and if they can both make important decisions for them without too much conflict, children are likely to cope much better emotionally with the separation of their parents. It also enables parents to obtain agreements which better match their aspirations, instead of a court imposing an order which neither parent is happy with.

Unfortunately, there are always going to be those cases where one parent ignores agreements or becomes difficult when trying to arrange mediation, and there are going to be some cases where mediation takes place but it is not effective or constructive.

My view is that the intentions behind this rule are good but I fear that unless there is a change in the attitude of some separated parents, the new requirement will delay rather than cut litigation and this will not be in the best interests of the children involved. Further, it might be argued that mediation stops people having their due day in court.

Of course, there are also going to be those cases in which mediation is not suitable, for example, in emergency protection cases or in cases where there has been domestic abuse. In these circumstances, mediation will remain non-compulsory.

Section 8 orders

If cases are not agreed in mediation then there may be no option for the parties but to request the intervention of the court. The court’s power to make orders regarding arrangements for children is contained within section 8 of the Children Act 1989. This allows the court to grant the following:

  • A contact order – requiring the person with whom the children live to allow them to visit or stay with the other person named in the order.
  • A residence order (sole or shared) – stating with whom the children will live.
  • A specific issue order – dealing with specific questions on the exercise of parental responsibility. Examples include the religion in which a child should be bought up, the school a child they should attend and certain medical decisions.
  • A prohibited steps order – preventing one parent from taking a particular step in relation to the child without the consent of the other parent or the court.

The new legislation will do away with residence and contact orders and replace these with ‘child arrangement orders’.

The Act defines a child arrangement order (CAO) as “an order regulating arrangements relating to any of the following –

a)      With whom a child is to live, spend time or otherwise have contact, and

b)      When a child is to live, spend time or otherwise have contact with any person”.

Shared Parenting or Parental Involvement?

When this new legislation was first introduced, it included a presumption of “shared parenting”. What the government meant by this was that both parents should be involved in the upbringing of the children. It certainly did not mean that each parent will have a right to equal time with the children.

Due to the widespread misinterpretation of the phrase “shared parenting”, though, parliament has instead opted for the term “Welfare of the child: Parental Involvement”, in the hope that this will promote the idea that both parents should be involved unless this would be inconsistent with the children’s welfare. It aims to send the important message that both parents play a valuable role in the children’s life and therefore encourage parents to adopt less hostile positions against each other when dealing with arrangements for them following separation.

A parent would only be covered by the presumption if they can be involved in the children’s life without putting the children at risk of suffering harm in any way. Further, if both parents are covered, the court must still consider whether or not the involvement of one of those parents would further the child’s welfare. That is to say, if it does not help or benefit the child in any way or if the involvement is not consistent with the child’s welfare, the presumption will be set aside. This could give rise to the argument that the court will now have a “get out” clause to oust a parent from a child’s life.

The presumption is to be applied to the granting and removal of parental responsibility. Parental Responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

Generally, if a parent does not hold parental responsibility (because they are not married to the mother or on the child’s birth certificate), it can be granted by the court, unless it would be detrimental to a child for that person to have parental responsibility. This reflects the day-to-day reality of most family courts.

What does the bill do in reality?

When I first learned of the introduction of a presumption in favour of shared parenting, my first thought was ‘this could be a nightmare’.

But, having considered the amended wording of the bill, I came to the view that there won’t actually be much practical change in the way cases are handled in court. When advising clients, I try to ensure that they understand that their children have the right to have a relationship with both of their parents and it is the parent’s responsibility to make this happen. It has, for the most part, been a given in most proceedings involving children that they should have a relationship with both parties unless this would be detrimental to their welfare. The new legislation will simply make this explicit.

Hopefully, in time, these new CAOs will lead to parents thinking less about winning and losing. In reality, the only losers in cases where arrangements cannot be agreed by parents are the children. Hopefully then, CAOs will minimise parents losing sight of what is in the best interests of the children and try to work together and cooperate for the sake of their children.

Perhaps the public perception of the roles of mothers and fathers and what is in the best interests of their children will not change at all. It is certainly not going to change overnight. I am sure there will be plenty of people who will say “ah yes…. but my case is different”. And who knows, maybe it is.

Only time can tell.

Jennifer has experience in most areas of family law, in particular with cases involving children disputes (including international children disputes) and/or domestic violence.

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  1. JamesB says:

    Difficulties and resentments coming to a financial settlement oftentimes will negatively affect the welfare of the children with adults being unreasonable because of the settlement or unable to houses where there was only one before.

    For the law to ignore that finances and contact are linked at all is unrealistic and needs to change also. Unfair financial orders and solicitors bills and processes need to be taken out of the equation too. Not just ignored.

  2. Paul says:

    What is it about ‘domestic abuse’, or rather the perception of it held by others, that immediately renders mediation unsuitable or inappropriate? In my view, mediation could be eminently suitable in such cases. It all depends. A good mediator could play a very important role in bringing about more considerate behaviour.

    Domestic abuse and domestic violence are best resolved most of the time by good counselling, not by pushing people into the criminal justice system or by preventing miscreants from seeing their children.

  3. davidmortimermiltonkeynes says:


    On 17th October 2004 the Conservative Shadow Secretary of State for the Family, Theresa May, pledged to end the misery of the family courts. Unveiling a strategy for institutional change.

    “We Conservatives recognise what the experts and common sense have always told us: that the best parent is both parents. It is time for a family court system that protects children and respects parents.

    Children who go through divorce – 146,914 of them in 2001 – have already lost out. We must not add to their distress with a court system that means they forfeit one of their parents as well. Under the next government, there will not be another generation of parents without children, and children without parents. Everyone – including the lawyers – accepts the time for change is overdue.”

    Theresa May underlined that the programme was a practicable reality in advanced discussion within the legal profession, child development experts and parenting groups. She said:

    “Too many families have been torn apart by divorce and separation. Not just because the adults’ relationship has ended, although that is painful enough. But because the bond between parent and child, or grandparent and grandchild has been broken.

    Our Country deserves a better system of family justice: one that is open, fair and accountable; that protects children and respects parents; but above all, that recognises that the best parent is both parents.”

    Institutional Change

    Under the proposals, CAFCASS, the Children and Family Court Advisory and Support Service, will be abolished. Theresa May said:

    “CAFCASS has been a disaster from Day One. Its officers write tens of thousands of trivial reports each year – on decent families caught up in divorce. CAFCASS breeds heartache and delay. CAFCASS clogs up the system. It’s the bottleneck in the divorce system wasting hundreds of millions of pounds a year.”

    Theresa May underlined her respect for the hard-pressed Guardians ad-Litem co-opted by Labour into CAFCASS.

    “The Guardians in CAFCASS provide an invaluable service to children in real need. But this part of the service is under-funded. Resources that should go to cases of real neglect are squandered by CAFCASS on matters which should not be dealt with by the courts. CAFCASS has got it back-to-front.”

    Other measures include:

    – legislating the presumption of reasonable contact

    – adopting the ‘good reason’ principle

    – implementing Section 11 (iv) of the Children Act for co-parenting

    – accrediting court-approved mediators and facilitators

    A Restructured Court System

    For parents who have reached the stage of issuing legal proceedings about contact, Conservative proposals include:

    – clear guidelines prepared by child development experts and stakeholders in conjunction with the judiciary to outline the range of beneficial post-separation arrangements

    – mandatory mediation before the first hearing conducted in the knowledge of what the Courts are likely to order

    – family courts working to expert guidelines acknowledging that the child’s needs are best served by “frequent and continuous” contact with both parents

    – court-backed mechanisms, including mandatory information sessions, to make these court-backed guidelines available to parents before the hearing

    Establishing Clear Expectations

    Theresa May said:

    “Children don’t need frequent and continuous litigation. They need frequent and continuous contact – with both parents. We must end the era where parents litigate for years just to see their children for two hours a fortnight. Yes, we need more mediation. But mediation must take place in a clear context. Parents have to know what the courts are likely to order. Predictability is so important in the months before a case starts.

    We want parents to sort out their differences without resorting to unnecessary litigation The Courts should be the last, not the first resort”

    Conservative proposals mean that most contact disputes should be settled before the first hearing, as happens abroad. Theresa May explained:

    “At the moment there is simply no information available. Separating parents have no way to find out what to do about their children. No-one tells them what the Courts are going to order. Then they find that the Government will pay their costs to continue arguing in court. Labour is fighting fire with petrol.”

    The Conservative scheme represents a radical departure from recent Government proposals. Labour’s Consultation Paper (Cm6723) pays lip-service to the idea of guidelines. But the first step remains untaken. Theresa May said,

    “The Government has failed to offer families a system that works. You have to start by bringing the judges, experts and stakeholders on board to agree what sort of orders the Courts should make. That way, you know what you’re trying to deliver. Then you build a legal system to deliver it. The Government never did its homework. It forgot the foundations. It’s the same old gerry-building: ‘anything goes.’

    Theresa May said she could not condone the tactics of pressure groups like Fathers For Justice, but added,

    “Let’s not forget that there is a legitimate grievance. Can any parent – hand on heart – imagine anything more terrible than losing their children? What would you do to see them? We’re going to build a proper system of justice”

    “It is not just the parents who have had enough with a third-rate service. It’s the professionals. We found that the lawyers, judges and experts have been calling for radical change too. Their proposals go into Whitehall in perfect order; they come back from Margaret Hodge’s DfES in tatters – with CAFCASS back in charge. At the end of the day, the issue is really very simple. What do children want: one parent or two?”

  4. Paul says:

    Nuff said, David.

    The appropriate riposte by single issue voters is either a spoiled ballot or a vote for UKIP.

  5. Yvie says:

    Very little seems to have changed with this proposed legislation, as there is no incentive for an inflexible parent to become more flexible, even when it is in the best interests of the children. It is still all about how much time a mother is prepared to ‘allow’ a father to spend with his children, and so ‘the winner takes all’ culture remains reassuringly intact. Importantly, whilst child maintenance and state benefits remain in their present form, parents will still end up on the steps of the Courts, and fathers will still face the same accusations as they have always done, as the financial gain in keeping any proposed contact with a father to the bare minimum, can sometimes be hard to resist, irrespective of the future outcome for their children.

  6. Stitchedup says:

    Paul -” What is it about ‘domestic abuse’, or rather the perception of it held by others, that immediately renders mediation unsuitable or inappropriate?”

    Domestic abuse is the trump card and, as I’m sure you are aware, all that is needed is an allegation, no poof.

    “Of course, there are also going to be those cases in which mediation is not suitable”. yes indeed, as long as normal domestic disagreements can be labelled as “domestic abuse” which is then confused with “domestic violence” aka battering, mediation is doomed to failure.

    If people have a disagreement, it would seem better to encourage them to discuss it in a safe controlled environment rather than gagging one party or the other.

  7. Anonymous says:

    The bill seems to me to be more about scuppering any chances for a shared residency default/presumption at precisely a time when the bigwigs know it is no longer legally tenable to discriminate against fathers as we have been doing for the past half century.

    It’s less about changing a faulty and discriminatory language than it is about disguising it.

  8. Bruno Ditri says:

    “When I first learned of the introduction of a presumption in favour of shared parenting, my first thought was ‘this could be a nightmare’.”

    That says it all really! It’s symptomatic of an ideology which utterly fails to understand the vital importance played by both parents in the life of a child.

    A “nightmare” for who? The so-called primary carer, whose selfish wishes to exclude a former partner from her life and that of her children would be frustrated?

    What of the real “nighmares” experienced by a child who has lost all meaningful contact with a loving parent?

    What of the real “nighmares” experienced by an excluded parent going through a “living bereavement “, month after month, year after year?

    Bruno Ditri

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