Are the terms ‘custody’ and ‘access’ really degrading?

Family Law|June 15th 2015

These days we seem to be fixated with terminology. Sometimes, the word that we use to refer to a thing seems more important than the thing itself. And the word can transform a bad thing into a good thing overnight: call a failing school an ‘academy’ and suddenly everything is all right.

And so it is with family law. As I’ve said here in a previous post, the family justice system is particularly partial to frequent changes in terminology. One of the examples I gave in that post was the way in which the terms ‘custody’ and ‘access’ transmuted into ‘residence’ and ‘contact’, and thence into ‘child arrangements orders’. The problem, however, is that the public and, in particular, the media have not kept up. As demonstrated clearly by the current Minnock case, they still insist upon using the original terms ‘custody’ and ‘access’. This is probably partly because those terms were in use for far longer than their modern counterparts and are therefore better understood (in general terms), and partly because, rather like with transparency, the public and media do what they want to do, not what we family lawyers want them to do.

Now, I accept that there were actually some good reasons for abandoning the terms ‘custody’ and ‘access’ (more of which in a moment), but I don’t feel any sense of outrage when I come across them being used. This is not so, however, for everyone involved in the family justice system. Many seem to get quite angry that the terms are still in usage, and I have even seen them being referred to as ‘degrading’. Are these terms really degrading?

The terms ‘custody’ and ‘access’ were, of course, replaced with ‘residence’ and ‘contact’ by the Children Act 1989. The Children Act enacted the recommendations of the Law Commission in its 1988 report “Family Law Review of Child Law Guardianship and Custody”. Part IV of the report deals with the recommendation to introduce the new orders, and explains the reasoning behind the recommendation. Unless I’ve missed something, nowhere in that reasoning did the Law Commission suggest in any way that it considered the old terminology to be degrading. The primary reasons for the recommendation were that the old terms were misunderstood and, most importantly, that the old orders concentrated on the allocation of ‘rights’ between the parents rather than responsibilities.

So, where did this idea that the old terms ‘custody’ and ‘access’ are degrading come from? It seems to me that it has gained traction in the years since 1989, as more ‘modern’ ideas regarding the resolution of disputes over arrangements for children have taken hold. ‘Custody’ of course has connotations of control (which often used to be part of the longer term ‘custody, care and control’), and it obviously also its criminal law usage of ‘imprisonment’. ‘Access’ perhaps has a connotation of ‘being allowed’ by the other parent. Such connotations are no longer considered to have any place in modern family law.

But does that make the terms degrading, or is such a description merely an example of hyperbole being used (as it so often is these days) as a means of emphasising distaste?

As I stated above, the old words ‘custody’ and ‘access’ are not just still in widespread usage (including, it has to be said, by most English-speaking people outside of England and Wales) but are also generally understood by the lay person, even if their precise meaning can be misinterpreted by parents involved in disputes. I may be wrong, but I don’t think lay people intend to use the terms in a degrading way, or consider that they are degrading. They are just terms that are regularly used – a situation that is likely to continue, whatever lawyers and law makers say – and the layperson who uses them is not thinking about connotations of control, or anything else.

The important thing, though, is whether the parents involved in the disputes to which the terms refer feel degraded by their use. I really don’t think they do – they see the terms in the same way as any other lay person. A parent who does not have ‘custody’ or who is granted ‘access’ may feel aggrieved at the decision, but they do not feel degraded.

In short, whilst it may be true that the old terms are no longer ‘quite right’, that does not make them degrading.

But does it matter if we criticise others for using the wrong terminology? Well, yes, I think it does, particularly if it is done in such an aggressive way. I think we need to keep our views to ourselves, rather than suggest that, at best, those who persist in using the old terms are ignorant or, at worst, that they are degrading the parents involved in the disputes to which they are referring, when that is almost certainly not their intention (as with the BBC presenter interviewing a lawyer about the Minnock case the other day). Making such a point makes us seem more aloof and out of touch, at a time when we are supposed to be showing ourselves and the system off in a favourable light.

Image by Lukas Benc via Flickr

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  1. Law Vocabulary | TOP LAWS says:

    […] Are the terms ‘custody’ and ‘access’ really degrading? By John Bolch – The terms ‘custody’ and ‘access’ were, of course, replaced with ‘residence’ and ‘contact’ by the Children Act 1989. The Children Act enacted the recommendations of the Law Commission in its 1988 report … […]

  2. Family Law Visitation Rights says:

    […] Are the terms ‘custody’ and ‘access’ really degrading? By John Bolch – The Children Act enacted the recommendations of the Law Commission in its 1988 report “Family Law … the allocation of ‘rights’ between the parents rather than responsibilities. So, where did this idea that the old … […]

  3. Yvie says:

    Personally I like the term ‘shared residence order’, as it conveys to the parents and the children, that both parents share the care of their children and both parents offer their children a home.. I don’t like the terms parent with care and non-resident parent, especially when both parents are sharing care of the children. I can live with the terms ‘paying parent’ and ‘receiving parent’ as they accurately reflect the truth.

  4. Suesspicious Minds says:

    Good pice John. I don’t find the use of custody and access degrading. It is somewhat irritating (and occasionally exasperating) that the Press use terminology which is now 25 years out of date , but if I had to choose between ‘custody’ and the new accurate ‘child arrangement order’ then custody at least conveys a meaning; whereas “child arrangement order” is so bland that it is of no use in communicating anything.

    So, I’d prefer that the Press said ‘residence’ and ‘contact’, but to be honest, in terms of the law that’s just as wrong as custody and access, so I’d have to accept that it is no longer about legal accuracy, but personal taste.

    I understand that the thinking is that ‘custody’ and ‘access’ are loaded terms, implying winners and losers and that if we smooth out the language it reduces the combative image and thinking, but I really don’t see on the ground that whatever wording you use really helps. If you hear one wordmore than any other in family justice it is “fight” – “I’m going to fight for my kids”, “He’s going to fight this”, “this case is going to be a real fight”

    At some point you have to wonder whether the imagery and language influences the approach and reality of Court proceedings, or whether the imagery and language just reflects how for many people the Court process actually feels.

  5. Yvie says:

    Parents shouldn’t have to fight in the Family Courts, it should be 50/50 shared parenting as the default by law. Unfortunately once parents find themselves within the Family Court, whether there is a ‘fight’ or not is down to the luck of the draw. Solicitors and Barristers on opposite sides can and should be able to work towards to reasonable outcome for both the parents and the children.. However, there are certain solicitors who are far too adversarial in their attempts to win their case, the children unfortunately, usually being the losers.

    • JamesB says:

      To be fair I don’t think the term single mum is particularly pleasant in positivity either.

      That said Judges in the family law courts throw money and all the assets at the single Mums and take as much as they can from non resident fathers. It usually is as simple as that in the poor family law courts in England and Wales and causes a lot of the homeless men seen on the streets. I remember being called the goose that lays the eggs by a judge in court to my ex, I thought that was very disrespectful also. I complained about it, it was looked into and the tape for that hearing mysteriously went missing. So much for equality before the law. I did believe in law before I went to family court in England.

    • JamesB says:

      After thinking about it Yvie, I agree. 50 50 on contact and 50 50 on assets has to be the default position of the courts. Anything else including the terminology mentioned here is unfair. They are trying to be too clever. Expecting a parent to put up with, indeed pay everything for, children they see every other weekend (which is what the courts do) if they are lucky is really unfair and out of date with what reasonable people expect these courts and the system with regards to family law in this country is an absolute disgrace. What they have in Denmark or Scotland or France would be ok.

  6. Bolchedik says:

    If I was to be so rude as to use the term ‘fool’ here, I suspect that the person being called a fool would find that degrading. I doubt they would dismiss my remark out of some fear that they were getting too hung up on terminology.

    In America, they used the term ‘nigger’ for a while, and what it did was create a deep and disgusting form of racism that is not only still prevalent, but getting worse and becoming institutionalised.

    Here in the polite UK, we just use terms that sound fairly neutral, like ‘non-resident parent’, but the effects are essentially the same. On an emotional level, you’ve had the full weight of authority communicating that that parent is not valued. On a legal level, you’ve ensured with great hypocrisy that they are despite all that still important for the financial upkeep of the children (because God forbid that the government should have to foot the bill of those whose sole talent is making more babies).

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