John Bolch on child arrangements orders: will they make any difference?

Family Law|April 1st 2014

I’ve talked here previously about the propensity that we have in our family justice system for renaming everything on a regular basis. As I said then, whilst some of the changes were for good reasons, many appeared to be little more than rebranding exercises, or just change for change’s sake.

One of the changes I mentioned in that previous post is now imminent: the replacement of residence and contact orders with ‘child arrangements orders’. These orders have already been discussed here by Jennifer Hollyer in this excellent post, but I wanted to say a few words about them myself.

The new orders are being introduced by the Children and Families Act 2014. Section 12 of the Act states that a ‘child arrangements order’ is:

“…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”

I assume that section 12 will come into force on the 22nd of April, to coincide with the new Family Court, although it was not mentioned in the first commencement order for the Act. However, The Child Arrangements Order (Consequential Amendments to Subordinate Legislation) Order 2014, which makes amendments to secondary legislation in consequence of section 12 is due to come into force on the 22nd of April.

Child arrangements orders were proposed by the Family Justice Review. The Review explained their rationale thus: “The new order would move away from loaded terms such as residence and contact which have themselves become a source of contention between parents, to bring greater focus on practical issues of the day to day care of the child.”

Quite what form the new orders will take is not yet entirely clear. However, the wording of section 12 mentions the three basics: with whom the child is to live, with whom they are to spend time and with whom they are to have contact.

‘With whom the child is to live’ is, of course, just another way of saying with whom the child is to reside, i.e. the same as the old residence order. Presumably, all child arrangements orders will state this, although obviously in shared care arrangements they could state that the child is to live for part of the time with one parent and for part of the time with the other.

‘With whom the child is to have contact’ is obviously the same as an old contact order, and even uses the same terminology, contrary to the apparent wishes of the Family Justice Review to ‘move away’ from that term. This doesn’t seem to me to be any sort of progress.

‘With whom the child is to spend time’ could refer to residence or contact – I’m not sure which. Certainly, these words do not seem to refer to anything different.

So, the ‘typical’ child arrangements order whereby the child is to reside with one parent and the other is to have contact will most likely read like a residence order and a contact order in one, with the word ‘reside’ omitted, and replaced with the term ‘live with’, or similar.

Will this actually make much difference? OK, parents will be denied the opportunity to obtain the ‘prize’ of a residence order, but the practical effect of the order will still be the same. Many parents will still perceive themselves in terms of being the ‘winner’ or the ‘loser’.

I would like to think that the ‘neutral’ title ‘child arrangements order’ will, as the Family Justice Review hoped, lead to less contention between parents but I’m really not sure that it will make a lot of difference. I fear that it will take rather more than a mere change in terminology to make most litigious parents put the welfare of their children first.

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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  1. John Bolch says goodbye to the statement of arrangements form - Marilyn Stowe Blog says:

    […] On the other hand, if there is a dispute between the parents about this topic, then one or both of them can make an application for an order under the Children Act. That order will most likely be one of the new child arrangements orders, that I discussed in this post. […]

  2. Goodbye to the family proceedings court - Marilyn Stowe Blog says:

    […] wrote about one example of this: section 41 of the Matrimonial Causes act 1973. Previously, I have written here of another example: residence and contact orders, which are to be replaced with child arrangements […]

  3. John Bolch asks: whatever happened to the presumption of parental involvement? - Marilyn Stowe Blog says:

    […] that when a court is considering whether to make an order relating to a child (in particular a child arrangements order) it is to presume, unless the contrary is shown, that involvement of both parents in the life of […]

    • Marilyn Stowe says:

      Dear John
      I think Section 11 got substantially watered down in the House of Lords so that it now reads:-
      (2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
      (2B) In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.
      Para 2B was added in the House of Lords and in total seems to restate existing law.
      When we contacted the MOJ before 22/4 and asked when it was coming in we were brushed off with “watch our website”
      An opportunity wasted.

  4. Mother allowed to take child back to New Zealand - Marilyn Stowe Blog says:

    […] Child arrangement orders, which dictate where a child will live and with who, were made in the mother’s favour. […]

  5. Nan says:

    This is clear- however every enactment it seems you think you can use one and in B or C it gets them out. The MOJ were quick enough to mention charge 1911-perjury that was being committed but when I made it clear it was family they said look on life the website which was no help what’s so ever. You try looking for a case very similar also and to this day we cannot find one, which makes us think how many times has this happened and been undetected where families including myself don’t practice in law and when a solicitor was trusted (before going freelance after being paid our savings,it shouldn’t have been stuck in one court) by law the judge shouldn’t have done what he done when stepping in,the other judge struck a application to stay while forgetting to mention to Anyone at the direction hearing “o by the way I stamped a order for ‘adoption ‘ and didn’t have the jurisdiction or tell any partie only finding out weeks later. solicitor is saying we will have to go to the supreme but sent a appeal to the same courts? Which I know it couldn’t be heard it had to go higher so that was another 12 weeks, where he went freelance forgetting to give the judgements… makes you wonder was it done on purpose, he knew full well the trainee had lied and sw1/2 , to make things worse and making it more complexed we understand why they were referring to the child as a boy (she is a girl) because it was the wrong child also-LA do stop contact and everyone including CEO and assistant directors are putting there signatures on to rush applications.
    They stop contact when they want to they do not stick to the FPR 2010,CFA2014,CA1989 ,ACA1989,2002/2005 . Certainly not the regulations .
    One has to ask how did this make it through a court without questions especially when the mag was asked to debar down and refused but again money was paid as we didn’t know about SGO WHICH section 12 and 22 covers (or it should) but where every enactment was breached there’s not one for that . Wishing everyone globally a merry Christmas! Those who can’t celebrate because of a absent ‘child ‘ ppl do understand, another thing I would like to add it’s also illegal in family not to declare a ‘protected P’ but a lot of these are being done not just one as adults especially in the LA care . Gov bodies are supposed to protect when reporting abuse but fail to also under the CA1989.

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