Family Law

Oliver Gravell, head of the family law team at Birketts

The Children and Families Act 2014 (the Act) came into force on 22 April 2014. The Act introduced child arrangement orders to replace the existing residence and contact orders which the courts have been making since 1989. On 22 October 2014 s 11 of the Act will come into force introducing a new presumption of 'continued parental involvement'.

Child arrangement orders

From April 2014 courts have been making child arrangement orders instead of residence and contacts orders. These have two main elements setting out:

1. with whom a child is to live and when
2. with whom, when and how a child is to spend time or otherwise have contact with someone.

These orders should clearly outline what a parent is expected to do by specifying the time the child spends with each parent either as the primary place of residence or (with the non resident parent) when they spend time together. They can also include very detailed provisions with regards to other aspects of the child's life if required. These changes can appear to be largely cosmetic as the new orders are very similar to residence and contact orders. However, there is an element of social engineering behind the changes as it is intended that the changes will over time remove the perception that the party who has a residence order made in their favour has 'won' and has the power of decision making over children, and encourage parents to reach an agreement in an amicable way rather than pursuing lengthy and costly litigation.
Any contact and residence orders made before the 22 April 2014 will be deemed to be a child arrangement order.

Presumption of continues parental involvement

Despite the fact there has been much discussion in the media about ‘shared parenting’ the Act in fact does not introduce this. Instead s 11 introduces a ‘presumption of continued parental involvement’ into the welfare checklist (s 1 of the Children Act 1989). In future the court will need to consider the presumption of continued parental involvement whenever it is asked to make a child arrangements order, special guardianship order or to resolve applications relating to parental responsibility.

The fundamental principle guiding any decision of the court is outlined in the Children Act 1989 where it is set out that the child's welfare is its paramount consideration. When makings its decision the court will consider the 'welfare checklist' set out in s 1 of the Children Act 1989, which includes looking at the children's needs, feelings and wishes; sex age and background alongside the effect of any proposed change on the child's upbringing. The effect of s 11 is that the court must now also consider as a starting point that both parents should be involved in their children's lives, unless this is contrary to that child's welfare. Involvement is defined as 'involvement of some kind, either direct or indirect but not any particular division of the child’s time'. It will only not order 'involvement of some kind' if there is a clear risk of harm to the child if one parent was involved in its life. It should be stressed that the change has not introduced a presumption of equal time with both parents.

The Government has suggested that the introduction of the presumption of continued parental involvement will 'promote greater understanding about the way in which court decisions are made, we [the Government] believe the amendment will, in time, encourage separated parents to adopt less rigid and confrontational positions with regards to the arrangements for their children'. This view is given further support and encouragement by the introduction of compulsory mediation under the Act, with all parties being expected to attend a mediation information and assessment meeting (MIAM) before making an application to the court.

While the legislative changes do not mark a drastic change, they do continue to reinforce the Government’s view in relation to mediation and shared parental involvement/ responsibility for children. Although, it may encourage the courts to impose more arrangements where the child's time is shared between both parents, the changes do not go as far to promote the equal division of the child's time between separated parents.

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The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.