ABSTRACT
The Law Commission’s Working Paper on Custody (1986) Working Paper No 96 (Part II) identified 12 different provisions under which courts could make final orders for custody and access, and made reference to the ‘many gaps, inconsistencies and anomalies amongst them’. The Law Commission Report No 172 outlined three ‘main difficulties with the present law’. The first was that orders may differ according to the proceedings. For example, divorce courts could make orders for ‘custody’, ‘care and control’ and ‘access’, with ‘joint custody’ orders becoming increasingly common in the 1970s and 1980s. Yet domestic courts hearing applications under Domestic Proceedings and Magistrates’ Courts Act 1978, and all courts hearing custody or access applications under the Guardianship of Minors Act 1971, could make orders only for ‘legal custody’ and access. The second difficulty was that the orders were ‘no longer clear or well understood’. Judges and solicitors, it was reported, had experienced difficulty in explaining the effects of the orders to clients.
