A message from our friends at Progressive Mediation:

We are sometimes surprised by how many separated parents still talk about ‘custody’ and ‘access’. These terms lost any legal currency more than 20 years ago following the 1989 Children Act. This introduced into law the concept of ‘parental responsibility,’ which all mothers, married fathers, and fathers named on the birth certificate (after 2003) now share.

Parents with parental responsibility should share major decisions about their children’s lives: for example, where they live, the school they attend, necessary major medical treatment, if they are spending time outside the UK. The Children Act encourages parents with parental responsibility to reach agreement on these kinds of things.

Court orders in respect of children can only be made if the court is satisfied that making an order is better than not making an order. The court has, until now, had the power to make ‘section 8’ orders in respect of ‘residence,’ ‘contact,’ ‘specific issues’ and ‘prohibited steps.’ The intention was that a residence order would do no more than define which parent the children mainly lived with, and a contact order would define times that the children spend with the ‘non-resident parent’. It does seem, however, that many parents equated a ‘residence order’ with the pre-1989 notion of custody; and a ’contact order’ was equated with ‘access’. In some respects the law gave support to this interpretation; for example, by allowing a parent with a residence order to take the child out of the country for one month.

The Norgrove Committee, which reviewed the family justice system, and received all-party support, recommended that residence and contact orders should be replaced by child arrangement orders. These orders will define the nature of a child’s living arrangements if these cannot be agreed by parents and need to be determined by a court. This change will come in with the Children and Families Act on 22 April 2014.

As mediators, we have long preferred to talk about children’s living arrangements, rather than ‘residence’ and ‘contact.’ We therefore welcome a change we feel to be overdue. Children deserve parents who take their parental responsibilities seriously, and who work together in their child’s best interests. It is not good for children to be the subject of a battle for parental control. We are happy to see ‘custody’, ‘access’, ‘residence’, and ‘contact’ all consigned to the dustbin of legal history. The great majority of separating parents are able to agree sensible living arrangements for their children. When this is difficult, mediation, not the court room, should be the first port of call.