What’s wrong with the term ‘custody’?

Family Law|June 8th 2016

These days people can get pretty het up about terminology. It sometimes feels as if all ‘old’ terminology is automatically bad (no matter how long it has been around), and must therefore be replaced with some shiny new term. And sometimes, as I’ve written here before, even the new term does not stand up to scrutiny, and has to be replaced.

But just legislating a change of terminology does not alter the English language. Sometimes the old term will persist, much to the chagrin of the het up brigade.

One such term was mentioned in that earlier post: ‘custody’. Like it or not, the term is still in general usage in this country. If you want proof, just Google ‘child custody’, and you’ll come up with many results emanating from this country including, amusingly, at least one government site.

And yet, despite this refusal of the populace to let go of a term they are obviously still happy to use, the terminology-changers continue to get upset when they come across its use. I saw this only the other day in a discussion between family lawyers on Twitter. The crux of the argument is that the term ‘custody’ connotes ‘possession’, and therefore encourages parents arguing over child arrangements to think in terms of one winner, who gets possession of the child, and one loser, who does not. Or something like that.

It is of course an old argument that was apparently won back in 1989 when the Children Act of that year was passed, replacing the term ‘custody’ with the term ’residence’. It subsequently turned out that ‘residence’ was not good enough either, and so now we have the rather awkward ‘child arrangements order’. This results in the linguistic complication that a simple statement such as ‘the mother has custody’ must be replaced by ‘the mother has a child arrangements order stating that the child is to live with her’. Or something like that.

But, as I’ve indicated, the public never took to the term ‘residence’, and the term ‘child arrangements order’ probably means nothing at all to most of those aboard the Clapham omnibus. ‘Custody’, however, is still in general usage, more than a quarter of a century after our betters attempted to re-educate the populace. Importantly in these times of families regularly crossing international borders, ‘custody’ is also still used and understood around much of the English-speaking world, whereas the term ‘child arrangements order’ would probably confuse many jurists in other countries as much as it confuses non-family lawyers here.

All of which will no doubt irritate the terminology-changing brigade.

But does language really matter? Are attitudes really changed by different terminology? I’m not convinced. Having practised for a good number of years both before and after the coming into force of the Children Act 1989 I can honestly say that I didn’t notice any change in the attitudes of parents involved in disputes over arrangements for their children. Their positions could be just as entrenched after ‘residence’ and ‘contact’ replaced ‘custody’ and ‘access’ as they ever were. Parents think about their children in possessive terms, whether we like it or not, and no alteration of terminology is going to change that.

More than that, I’m not sure there is anything inherently wrong with the term ‘custody’. I think the terminology-changers read too much into it. Just because ‘custody’ has another connotation, I’m sure most of the public can tell the difference between when it is meant in the sense of ‘imprisonment’ and in the sense of ‘caring for a child’.

In short, I’m not sure we need obsess over terminology. Let people use the word ‘custody’ if they wish – it doesn’t make them wrong, or even misguided. Language is not about changing attitudes, it’s about conveying meaning, and everyone, including the terminology-changers, knows what ‘custody’ means.

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  1. Vincent McGovern says:

    The problem with the word custody is that I so seldom hear it spoken of as Shared Custody. So then the non custodial parent has contact!!!! with their child. Which is a term normally applicable to the enemy or space aliens, contact with. So the father has contact at the mothers and states discretion, usually minimal even if he was the primary carer before the divorce or separation. But fragrant mummy can meet any man she likes in the pub and bring him home. He can then help her with custody of the children. But the father can only have contact when custody applies. If that is not sufficient explanation as to what is wrong with the term ‘custody’ then no explanation will suffice.

  2. Andy says:

    Call it what you like…The golddigger Mother still gets all the pot and benefit, in such cases a new name for crap outcomes such as CSA now CMS…same crap but having to pay more…

    God help fathers…As the law is against them..

  3. Nick Langford says:

    Yes, language does matter. “Child arrangements” was an honest and well-intentioned attempt to move beyond the ownership implied by the old terms and encourage parents (and, indeed, lawyers) to think in terms of the child’s relationship with both parents. Changing to “residence” didn’t work because the law didn’t change sufficiently radically at the same time, and “residence” continued to confer control and authority rather than just the division of time intended.

    English is a “dual” language, in the sense that many concepts can be expressed in both Latin and Anglo-Saxon vocabulary. “Custody” is the Latin equivalent of the Anglo-Saxon “guardianship”, which may be one way of looking at it: safeguarding, rather than imprisonment.

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