So I had an unsolicited query the other day from someone, and I thought it was probably a question that others are asking. It raises a point of general application.
“I wondered if you could clarify something for me. If what was originally applied for was a contact order and residence has never been the issue before the court is it correct/possible to have the line that says who the children live with to be left blank, or are all CAOs now going to effectively be residence orders by the back door?
I have read a post on The Custody Minefield blog which suggests it is not true that the CAO has to have that section completed. The latest (interim) order has however come through with it stating the children live with the respondent and as such she is now free to take the children abroad without the permission of my husband while he is no further forward in his quest for overnight contact.”
s8 Children Act used to have four types of order : residence, contact, prohibited steps and specific issue orders. We can forget the last two because they don’t really concern us here.
s8 Children Act now has child arrangements orders instead of residence and contact orders. But they come in two flavours : living with and spending time with. Apart from some tweaks regarding enforcement basically wherever the Children Act used to say residence it refers to a child arrangements order that specifies with whom a child shall live and wherever it used to say contact order it refers to a child arrangements order that specifies when a child should spend time with…
You’ll be wondering then, what difference there is between a residence order and a CAO that says where a child lives or between a contact order and a CAO that says when a child should spend time with someone else? The answer is not a lot (oh groan, I just heard that last phrase in Paul Daniel’s chirpy voice as I typed it). Which is why it was so easy for outstanding applications and existing orders to magically convert into new-style CAOs at midnight on 21 April 2014.
The custody minefield blog post is about the old issue of whether or not you can have a contact order without there being a residence order first / also. You can. It’s clear. It happens often. It’s no longer controversial. It did before CAOs came into force and, since the amendments relating to CAOs are basically terminology swappage there is no change to the CA that says a CAO has to be both flavours at once.
The confusion (I think) arises from the templates on which the CAOs are produced. They include a series of headings, some headings include useful information, but not all are the ACTUAL CAO itself. The section for the CAO has some standard wording for both flavours of CAO, which may give the impression than both must be filled in. But in fact they are just examples that can be deleted if inapplicable.
There is a section to record the current actual arrangements, a section for AGREED arrangements and a section for child arrangements ORDERS. Lawyers understand the distinction, litigants in person may not. Litigants and lawyers may reasonably ask whether the templates tend to duplicate information and might be rather confusing. To which the answer is probably “Yes” – as the original question demonstrates.
So. An order can include wording saying that a child lives with the mother, for example, but unless it is in the section of the order that is headed “child arrangements order” it is not a child arrangements order. We call these descriptive parts of a court order, which usually go towards the top before the “proper” bit of the order “recitals” or “preambles”. They aren’t orders of the court but records of things that happened, were agreed or were noted in the context of the court process.
The Children Act has always had a provision called the “no order principle” (See s1) which prohibits the court from making an order unless it is better to make an order than no order. Often (but not always) where it the living arrangements are settled and agreed there is no need for an order and therefore there should not be one.
The changes to the Children Act this year should not have resulted in more “residence” flavour CAOs being made inadvertently but it may be that either some templates are being completed incorrectly (for example the person drafting the order records the arrangements as an order rather than a recital without realising the consequences) OR that recitals recording the agreed position are being interpreted as orders when they are not.
A recital on a CAO about where a child will live will not have the same effects as a CAO saying where the child should live, such as the entitlement to take a child abroad.
It’s worth noting that even if the court has not made a CAO setting out residence arrangements it can make a Specific Issue order that says that a parent is permitted to take a child abroad instead, if that is appropriate. Although frankly, it’s just easier to do it by means of a residence order (sorry, child arrangements order specifying with whom a child should live. Trying to break the habit of a lifetime here, people…).
I don’t know if the example above involved an actual CAO or just a recital (and in fact it may also be that the writer of the query comes from an area where some renegade court is not using the prescribed templates – *gasp*). At any rate, I’m not going to speculate because I don’t give advice on this blog. I’ve just used this query as a starting point to illustrate some issues that I suspect many litigants are grappling with (along with lawyers I might add).
Got all that? Clear as mud, right? You’re welcome…