A matter of terminology by John Bolch

Family Law|January 9th 2014

I have now been involved with family law, whether as a student, practitioner or commentator, for the best part of forty years. The thought sends a shiver down my spine!

During that time I have obviously had to keep up to date with ever-changing law and procedure. However, much of that updating exercise has been devoted to simply keeping up with the seemingly constant changes in the terminology used by various parts of the family justice system. And whilst I accept that some of the changes were for good reasons, many appeared to be little more than rebranding exercises, or just change for change’s sake.

Perhaps the best known example – one that still catches out lay people (and some older lawyers) – is the new names given to the two main types of children’s order by the Children Act 1989. Out went the old terms ‘custody’ (which, incidentally, is still understood throughout the English-speaking world) and ‘access’. In their place came ‘residence’ and ‘contact’. I acknowledge that ‘residence’ has a different meaning to ‘custody’, but is a ‘contact order’ really that different to what an ‘access order’ used to be?

And one of the things about changes in terminology these days is that they happen far more frequently than in the past. Whilst the old terms ‘custody’ and ‘access’ happily existed for centuries (certainly in the case of the term ‘custody’), the terms ‘residence’ and ‘contact’ will have a far shorter lifespan. Residence and contact orders will be replaced by ‘child arrangement orders’ when the Children and Families Bill comes into force later this year.

And the changes to the terminology used for court orders are not just limited to orders relating to children. For most of my career an order for a financial/property settlement upon divorce was called an ‘ancillary relief’ order. Whilst this was deemed perfectly adequate for many decades, those that know best decided a few years back that it was not sufficiently clear for those that couldn’t work out that it meant ‘ancillary to the divorce’, so now instead of applying for ‘ancillary relief’ you apply for a ‘financial remedy’.

The courts themselves are not immune to the work of the name-changers. Back in the 1980s I used to issue all my divorces in the ‘Divorce Registry’. That name, however, disappeared and was replaced by ‘Principal Registry’, which to me seemed less clear in describing what the court was about.

Meanwhile the title of the judges themselves has changed, at least in respect of the county court judges that dealt with most of the family law work. Previously they had been known as ‘registrars’, but that term was replaced by ‘district judges’.

But I have left for last what is perhaps the greatest culprit when it comes to gratuitous change : child maintenance.

Firstly, there is the term itself. Prior to the advent of the Child Support Agency (more of which in a moment), money ordered to be paid by one parent for their child was usually referred to as ‘child maintenance’ (I shall ignore the term ‘periodical payments’), but under the non-court scheme this became ‘child support’. However, because of the appalling reputation of the CSA, we have recently reverted back to ‘child maintenance’. Such is progress.

Then there is the Agency. As I said, that acquired such an appalling reputation for inefficiency that it was replaced by the ‘Child Maintenance and Enforcement Commission’ (‘CMEC’). Except that it wasn’t – the Child Support Agency never disappeared, or at least it hasn’t yet. However, CMEC has gone, to be replaced by the ‘Child Maintenance Service’.

And finally there is the terminology that the child support/maintenance scheme has used for its ‘customers’, the parents. The terms used for them have changed so frequently that I confess I’ve not kept up, but it went something like this. In the beginning we had the ‘absent parent’ (‘AP’) and the ‘person with care’ (‘PWC’). These were clearly not satisfactory though, and were replaced by ‘non-resident parent’ (‘NRP’) and ‘parent with care’ (still ‘PWC’). But that was also not good enough, so those terms were replaced by ‘paying parent’ and ‘receiving parent’ (I think – please don’t correct me if I’m wrong – I don’t want to know). However, these terms, too, are to be consigned to history and replaced by ‘parent who pays’ (‘PWP’) and, would you believe it, ‘parent who receives child maintenance’ (PWRCM’) – even the initials are a mouthful.

I could go on, but you can have too much of a good thing. I hope you’ve kept up. As for me, I’m off to lie down in a darkened room…

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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