When I began practising as a family lawyer in the dim and distant days of the early eighties, the two main types of private law children orders went by the names ‘custody’ and ‘access’. These terms had been used since time immemorial (or so it seemed) and, indeed, were so ingrained in the public consciousness that they are still commonly used today.
In 1989, however, the powers that be decided it was time for a change. What had worked for so long was no longer appropriate for modern sensibilities. Accordingly ‘custody’ and ‘access’ were replaced with ‘residence’ and ‘contact’, the rationale behind the change being that ‘custody’ and ‘access’ were too ‘emotive’, causing unnecessary antagonism between parents.
But, as with all consumables, in the modern world nothing lasts for long. In 2014 our lords and masters decided that ‘residence’ and ‘contact’ were also obsolete, for pretty similar reasons to the 1989 change, and had to be replaced (well, not entirely, as I will explain in a moment). In a Monty Python “And now for something completely different” moment the government came up with the child arrangements order, which we were told means 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.
Hmm. There is a slight problem here. Whilst the words ‘residence’ and ‘contact’ may have gone the way of the dodo, the concepts behind the words remain. After all, a child may still reside with one parent, and have contact with the other. Thus ‘residence’ became ‘live with’, and ‘contact’ became ‘spends time with’.
But wait a minute, doesn’t the word ‘contact’ still appear in the new terminology? Well, yes it does. So maybe ‘contact’ was not such an awful word after all? Does this mean that we can interchange ‘contact’ and ‘spends time with’? Are the two exactly the same? I honestly don’t know. (I note that the relevant standard family order refers to a ‘Live with order’ and a ‘Contact order’.)
I confess I was never very impressed by the new terminology. It did seem to me to be very awkward, and didn’t seem to achieve an awful lot, being little more than a quibble over semantics, driven by a desire not to upset anyone. Still, I put my lack of enthusiasm to one side, and moved on. Until recently.
Reading law reports relating to child arrangements applications I have been increasingly struck again by how awkward the terminology is. Instead of the judge referring simply to a ‘’residence order’ or a ‘contact order’ they now have to refer to a ‘live(s) with order’ or, worse still, a ‘spends time with order’. This terminology is not just ungainly, it can also be hard to follow, particularly, I suspect, for litigants in person.
But it is not just the awkwardness of the terminology. It can also be quite confusing. Take, for example, this extract from the judgment in the recent appeal RC (A Child), referring to the orders being appealed against:
“ii) Paragraph 18
lives with order: the child shall live with both parties …
iii) Paragraph 19
spends time with order: the parties must make sure that the child spends time with the respondent father within a regular fortnightly cycle for at least six nights, into blocks of three nights …”
Erm, doesn’t paragraph 18 contradict paragraph 19 (or vice versa)? Surely, if the child is to ‘live with’ both parents, then, to use the old terminology, they reside with both parents, i.e. there is a joint residence order. Why, then, is there a need for a ‘spends time with’ or ‘contact’ order as well? Surely, a parent has residence or contact, not both? Of course, as a family lawyer I understand what is happening here, but do parents involved in child arrangements proceedings, particularly those who are not represented, understand? I’m sure that many are left confused as to exactly what the court has ordered.
OK, perhaps I should leave it there. I am of course a family law dinosaur (and perhaps soon to be a dodo). Maybe those younger and less stuck in their ways have no problem with the terminology.
I would also like to point out that the above should not be interpreted as a call for yet another change in terminology – that is the last thing we need.