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2.14The court may also make a care and control order which vests the physical day to day care in one parent, with a joint custody order.  We understand that sometimes the court and one of the parties have refused to countenance a joint custody order as it is seen as implying joint physical custody, or that such an order implies a duty on the parent having care and control to consult the other parent on all matters concerning the child.  Perhaps there is a concern about the non-custodial parent exercising a veto on day to day decisions.  However the impact of a sole custody order has practical effects.  For example, a school will not send school reports to the non-custodial parent.  There are also potential problems if the non-custodial parent has to bring the child for urgent medical attention during a period of access.


2.15Access is the right to have reasonable contact with the child, either by visiting the child or by being allowed to take out the child or having the child to stay.  Access could also include reasonable contact by telephone, particularly where the parent is in another country.72

Legal effect of custody orders

Split orders

2.16A split order vests care and control in one parent and gives custody, in the sense of wider decision-making power, to the other parent.   The non-custodial parent has a right to access, a duty to pay support and a right to object to major changes such as adoption or emigration, or a change in the child’s name.  

2.17In Dipper v Dipper,73  an order giving sole custody to the father but care and control to the mother to ensure that the father was informed before the children might be removed from their school, was criticised on appeal by Cumming-Bruce LJ: “the parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters.”74  The Court of Appeal changed the order to a joint custody order with the mother having care and control.

2.18Despite this judgement, “it was widely thought that the effect of a custody order was to transfer to the custodial parent exclusively most of the major  decision making powers over the child”.75  This judgement was criticised for causing confusion as it appeared to be in conflict with the statutory provisions “applying to legal custody orders under which it was impossible to have an order for joint legal custody but under which the court could specifically reserve to the non-custodial

72 Scottish Law Commission, Report on Family Law, (Scot Law Com No 135: 1992) at 2.17.

73 [1981] Fam. Law 31.

74 Ibid at 48.

75 Bainham, Children, The Modern Law, (1993), 67.

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