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.
“…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.