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I must admit that I am always slightly amused when a Family Law Judge baulks at the use of the term ‘custody’ in a Children Act case. It is however right to say that the term was ‘abolished’ as a legal term of art after the Children Act was made law in 1989. It was replaced with the term ‘residence’, which itself was abolished in 2014, when the Children and Families Act was brought into force, being replaced with the rather cumbersome construct, ‘child arrangements order (live with)’.

When it comes to disputes over their children, warring couples almost instinctively think in terms of ‘custody’ battles, when what they really mean is ‘child arrangements fights.’ This shouldn’t be a surprise given that most parents are not lawyers – certainly most are not judges. Also some jurisdictions still retain the term ‘custody’ as a legal concept relating to with whom and where a child should live. This is an important point in an ever shrinking world.  It simply means ‘the legal right to care for a child’. This might be solely, jointly or equally; permanently or temporarily. It implies a sense of being under legal duty to care for a child, with a solemn obligation to sensibly guide him, throughout the whole of his minority.

Every parent knows what ‘custody’ means – so does every Judge actually – which is why the judiciary should not be so pejorative when reference is made to it in the Family Court.


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