Custody and access must be among the most misunderstood terms in family law – because they don’t officially exist any more.
They used to of course, before the Children Act changed the terminology. But the 20th anniversary of that particular piece of legislation has been “celebrated” over the last couple of weeks and it is quite amazing that two words have stuck so strongly in the public’s consciousness, still bandied around 20 years after being replaced with “residence” and “access”.
The BBC has run a series of three hour-long programmes looking at the impact of the Children Act, in particular the change in family circumstances and the now commonplace absentee father. With one in three British children having parents who are separated, the relationship of children with the absent parent – or lack thereof – can have a significant affect on their upbringing.
It posed some significant questions: If 93 per cent of single 'resident parents' after marriage breakdown are women, what are the long-term consequences for generations of children now growing up without a father? With the courts' current focus on mothers' welfare, sometimes at the expense of fathers' continued contact with their kids, are the parents to blame? Or is family law failing fathers, and the Children Act failing our children?
When The Children Act came in, it was the first time the law changed stance to come from the child’s point of view – what was right for them – and enshrining the principle that the child has the right to see both parents. Previous to that, the law was more geared towards the mother or father shouting about their rights to see their children.
While I have my own thoughts about the questions posed by the BBC, I don’t think there are any clear answers. But it is fair to say that 20 years after its arrival, the Children Act has led to many more children being aware of their rights but perhaps less about responsibilities.
The BBC shows are definitely worth a look on iPlayer – or just wait for the inevitable repeats. To find out more about divorce and children, click here to view the Woolley & Co video on the subject.
Andrew Woolley
Divorce solicitor