Child residence order, often wrongly referred to as Child Custody - Family Law Partners

Child residence order, often wrongly referred to as Child Custody

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Just like the term ‘common law man and wife’, there is a great deal of misunderstanding and inaccuracy around the term ‘child custody’. In this post I explore the legal definition of these terms and how new legislation has changed the family law playing field again….

At a time when many are starting to move away from using the terms ‘Custody’ and ‘Access’ new legislation is introduced which will introduce new terminology.

Before the Children Act 1989 there was:-

Access – when the parent that the children did not live with would see their children; and

Custody – who the children would live with.

These terms have been inaccurately used by many people for years (and continue to be used), despite the introduction of new terminology under The Children Act 1989:
Contact – the new term to replace Access; and

Residence – the new term to replace Custody.

As of 22 April 2014 and the publication of the Children and Families Act 2014, all of the above terms have been replaced with the following:

Child Arrangement – this will provide the arrangements for the children.

Despite the new terminology, the update does not change the basic principles of the Welfare Checklist contained within the Children’s Act 1989. These are:

  1. The wishes and feelings of the child;
  2. Physical, emotional and educational needs;
  3. Likely effect of any change in circumstances;
  4. Age, sex, background and any relevant characteristics;
  5. Any harm which the child has suffered or likely to suffer;
  6. How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant.

Under the new act the changes also make provision for increasing the importance for the parents to attend mediation to try to avoid painful, lengthy and expensive court proceedings.

A Mediation Information and Assessment Meeting (MIAM) is a short meeting that provides information about mediation as a way of resolving disputes. A MIAM is conducted by a trained mediator who will assess whether mediation is appropriate in the circumstances.

Crucially, it is now a requirement for a person to attend a MIAM before making children applications to obtain a court order. The person who would be the responding to the application is expected to attend the MIAM. The court has a general power to adjourn proceedings in order for non-court dispute resolution to be attempted, including attendance at a MIAM to consider family mediation and other options.

As a family solicitor and mediator who specialises in matters involving children, I welcome this change. Mediation allows parents to make the decisions about what is best for their child or children. It is the child’s right to have a loving relationship with both parents. Why let a complete stranger who does not know your child decide what should happen – surely the right outcome is one decided by the parents. What is best for the child may not be what you personally want but their needs should come first. Mediation provides a flexible, non-confrontational means of reaching a conclusion that is best for the children.

To find out more about the mediation process, find out more about the FLP approach here or read our latest blog post where we outline my top 10 benefits of mediation which also apply to matters involving children.

This blog was originally written by Lauren Guy. For a consultation with a member of our specialist family law team please contact us.

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