The term “Child Arrangements Order” (CAOs) seems to imply that there will be a mixing of what we currently call residence and contact and the wording of such orders is going to be very important. It is not clear whether this label will mean that orders will be more detailed, less detailed or largely the same as they are now. Will they deal with the specifics, such as parenting techniques or what one parent is to feed a child? It is difficult to tell and linked to this is the more interesting and pertinent question of how these orders are going to be enforced.
Currently, for example, contact orders, are drafted in such a way as to force one parent to make the children available for contact with the other and if that parent does not do so, they are in breach. There is a very clear warning notice attached to every contact order granted after 8 December 2008. This states “Warning, where a contact order is in force, if you do not comply with this contact order you may be held in contempt of court and committed to prison or fined and/or the court may make an order requiring you to undertake unpaid work (an enforcement order) and/or and order you to pay financial compensation”.
In addition to these methods of punishment, other options are available to the courts, such as a change of residence from one parent to the other (something used only as a last resort and only when it would be consistent with the children’s welfare). What will happen with these new CAOs?
Presumably the orders would need to contain the same language and the same legal emphases and liability as the current orders. Therefore, the only difference with these new orders could be the name.
The government has said it would be premature to give the courts additional punitive measures. I would disagree. I think there are too many people getting away with breaching orders already and even when enforcement proceedings are bought, the majority of cases end up changing arrangements rather than punishing the person who disobeyed the earlier order.
The idea has shifted to enforcement through therapeutic methods and directions regarding contact, instead of actual punishment. When orders are disobeyed in cases of implacable hostility, parental alienation, and simple intransigence, it is pretty unlikely that therapy would be effective. And anyway, who would pay for it?
And what about the rights attached to current residence orders? For example, the right of the resident parent to take the children out of the country for up to 28 days without the consent of the other parent (with parental responsibility)? How will this be included in a child arrangement order and what affect will this have upon child abduction legislation?
We have come a very long way from the law before 1991 where we had “custody” and “access”. Many people with custody orders used the term to imply ownership of the children and access meant that the other parent could see the children if the “owner” consented.
“Residence” and “contact” were then brought into law and the paramount consideration became the children’s welfare. Indeed, the children’s welfare will still be the paramount consideration in any children’s case.
The Family Justice Review did not favour any statement being inserted into the Children Act 1989 regarding shared care or parental involvement. It was thought that anything like this would take the focus from the welfare of the children. The government did not share this view. It decided that something needed to be done about the perception of the family justice system, the outdated perception and bias that children should invariably live with mum and only see dad on alternate weekends. They wanted to address implacable hostility and unnecessary labelling, reducing the burden on the overworked courts. But have they gone far enough to satisfy the ideals of father’s rights groups, given that the words ‘shared parenting’ have been dropped and that shared residence orders will no longer be granted?
We will have to wait and see whether there will be any significant change to the ways in which children’s matters currently progress, but my view is that, if the questions posed above are dealt with effectively, any change will in fact be minimal. Is that a good thing – or a bad thing?