When a relationship breaks down, it is a difficult time for everyone, but the needs of the children should come first. Parents must think about where the child or children should live and what contact the other parent should have. Such decisions are often difficult, provoking arguments and tension. There are other parties who might want to be involved, such as grandparents or step parents or same sex co-parents, in the day to day care of the children and this can make the matter even more complex.
You should seek legal advice from a specialist Family Law Solicitor about such matters and at Paul J Watson Solicitor, you can be sure that we take parents’ rights very seriously. We will advise you every step of the way, whether mediation or court proceedings should be your chosen route.
Our General Guide to Residence Orders;-
What is Residence?
Residence was, and still is, sometimes referred to as “custody” of a child, although technically, “custody, care and control and access” were abolished in 1991.
Residence simply means who the child lives with after parents separate. A Residence Order defines who a child should live with on a permanent basis and who should be the child’s main carer. It does not define the residential address at which the child should live.
You may be able to agree this directly with the other parent, avoiding the need to go to Court. Such an agreement does not close the option of going to court later on if there are problems or if one parent changes their mind.
A Residence Order is usually in place until the child reaches 16 years of age and grants parental responsibility to the holder of the order for the lifetime of the Order, although there can be exceptional circumstances where this is not the case.
Who can apply for a Residence Order?
1. The child’s parent or guardian or special guardian.
2. A person who already has a Residence Order.
3. A married step parent, where the child has lived with that step parent as a child of the family.
4. A person with whom the child has lived for at least three years.
5. A person who has the consent of everyone who has parental responsibility for the child. (See “Parental Responsibility”).
6. Should a person wish to apply for a new Residence Order in circumstances where a Residence Order has already been granted to another named person, then that named person must give their consent to the new applicant.
If you do not fall under one of these categories, then an application can be made to the Court for permission to make an application. When deciding, the Court will consider;-
1. What the application is for.
2. The applicant’s connection with the child.
3. The risk of the application disrupting the child’s life to such an extent that the child might be harmed by it.
In this way, it is possible for grandparents or other wider family members to make applications to the Court.
What do we do if we can’t agree?
Firstly, you should consider attending mediation sessions. This option is voluntary and it involves meetings with a trained independent third party, who helps the parents negotiate, without the need to go to Court. It is an inexpensive way of helping the parties come to an agreement. This should be your first choice if there is a possibility that you can come to an agreement without the stress and complications of court proceedings. There are however circumstances where mediation is not appropriate, such as if there have been incidents of domestic violence between the parties.
We would first discuss the case with you and then write to your former partner/husband/wife, setting out your proposals and attempt to negotiate for you. If this does not work, then we ascertain whether mediation might be an option for you. If so, then we can arrange for a specialist mediation service to contact you and the other party to arrange mediation sessions. If mediation fails, then we could discuss making an application to the Court to decide the issue.
If you are on Benefits, then you may qualify for free mediation sessions. The same applies if you are on a low income.
Our chosen mediation service is called the “Families Talking Tees Valley Mediation Service”, who are situated in central Middlesbrough; however, we do have other mediation contacts and we would appoint the most appropriate mediator for you, dependent on where you live and what transport is available to you.
If mediation is not appropriate in your case, then an application would need to be filed at Court.
How does the Court decide who should get residence and/or contact?
When making decisions about a child, the Court must consider the law set out in The Children Act 1989 (C89), which states that the child’s welfare must be the Court’s “paramount consideration”. In simple terms, the Court must put the child’s welfare above everything else.
The Court must consider all the circumstances of the case, particularly having regard to;-
1. The child’s wishes and feelings. Obviously this depends upon the child’s age and how much they are able to understand. Generally speaking, the older the child is, the more attention the Court will pay to their wishes and feelings.
2. The child’s physical, emotional and educational needs. This includes the day to day practical needs, such as housing and food, as well as love and affection.
3. The likely effect upon the child of a change in circumstances. This is of particular concern in residence issues, as the Court will want to disrupt the child as little as possible and to ensure that the child’s life stays the same, as much as possible.
4. The child’s age, sex, background and other relevant characteristics. This might be any cultural or religious needs, or any special needs or disabilities which might affect the child.
5. The risk of harm to the child. This is the risk of the child suffering and/or having suffered in the past, any physical, emotional or sexual abuse. It also includes the child being witness or at risk of being witness to any domestic violence within the home.
6. The parents’ capabilities in meeting the child’s needs. These capabilities might be impaired if one party has never looked after a child before, or if there is a history of alcohol or drug misuse.
7. The range of powers available to the Court. The Court might decide to make a number of different Orders or perhaps no Order at all, depending upon the circumstances of the case. The Court will only make an order if it is in the best interests of the child or if there is a dispute. The Court can make other Orders, such as a Prohibited Steps Order (which limits certain parental rights and duties, such as preventing a parent from taking the child out of the country) or a Specific Issue Order (which specifies action that a person is to take, such as to send the child to a particular school or for the child to live at a specific address).
Where the child is of very young age, the Court usually assumes that the child would be best placed with their mother, unless it can be proven to the contrary. That is not to say that this is always the case and the Court considers each case on its own merits.
It is also considered beneficial for siblings to stay together and the Court usually prefer for the child to be brought up by a parent, rather than a non-parent. Again, this is not always the case, especially if the child has formed a strong bond with a non-parent.
What happens at Court first?
The Court proceedings usually take place in the Family Proceedings Court, which forms part of the Magistrates Court, although some cases are directed to the County Court. The Court may ask both parties to attend a meeting with a CAFCASS (the Children and Family Court Advisory and Support Service) Officer, who is an independent third party. The CAFCASS Officer will see if it is possible for you both to negotiate, which may avoid the need for the Court to make an Order.
What if I’m frightened of my former partner/spouse?
Such a meeting might not be appropriate for you, particularly if you are frightened of your former partner/spouse because you have suffered domestic violence. If this is the case, it is very important that you tell your Family Solicitor, so that the Court can be made aware of this. In such circumstances, you could be seen by the CAFCASS Officer on your own.
The Court can order CAFCASS to prepare a Welfare Report, to help the Court consider;-
1. Any domestic violence suffered by you or the other party, or the child. This includes any domestic violence that the child may have witnessed, rather than suffered.
2. The harm that the child may be at risk of suffering if an order for contact is made in favour of either you or your former partner/spouse.
3. Whether it will be safe for you/your former partner or spouse and your child to have contact where there have been issues of domestic violence.
4. The wishes and feelings of the child on issues of residence and/or contact.
At this stage, you should make sure that you tell the CAFCASS Officer if there have been any organisations involved as a result of domestic abuse, such as the Police, your GP or a domestic violence organisation, such as Women’s Aid or My Sister’s Place.
How does the Court decide what should happen?
When making a decision, the Court will decide what other evidence might be needed in order to make a decision about residence and/or contact. Such decisions are known as “directions”. For example, both parents might be asked to give statements as to their views, or ask the CAFCASS Officer to make a report and recommendations about what should happen. In making the report, the CAFCASS Officer reads the Court file and the parties’ statements, meets both parents and the child (separately) and any other professionals necessary. Such professionals might be Social Services, or a Child Psychologist.
It is very important that you cooperate with the CAFCASS Officer, because their report and recommendations carry a lot of weight with the Court when it makes a decision.
At the Final Hearing, the Judge listens to evidence from each parent (through their solicitor or barrister), the CAFCASS Officer and any other expert. After hearing all the evidence, the Judge will make a decision on where the child should live and what level of contact should be granted to the other party.
Is there more than one type of Residence Order?
Yes, there are two basic types of order. One is a full Residence Order and the other is a shared (joint) Residence Order.
Full Residence Order – States which parent the child should live with full time.
Shared (Joint) Residence Order – States that the child lives with both parents, for a particular period of time. This is not necessarily a 50/50 division, although it can be. The division often depends on issues such as where each parent lives, how often they work, where the child goes to school etc.
The Court usually decides that shared residence should be granted when a child is already spending significant amounts of time with both parents or when the parents live in different countries. Shared Residence Orders are also a way to provide a person who is not the legal parent of the child with parental responsibility (see below), such as a parent’s unmarried new partner, or a former partner with whom the child likes to spend a lot of time, or the biological father/mother of a child who is co-parenting with a lesbian couple but is not legally the father/other parent.
Every family’s circumstances are different and the Court will make a decision based on what it believes, upon hearing all the evidence, is in the best interests of the child.
Whilst the Court is deciding what type of Order to make, it can grant an interim Residence Order. This states whom the child should live with whilst the Court is making a final decision.
Effects of a Residence Order;-
1. It grants Parental Responsibility to a parent who does not already have it,
2. It allows you to appoint a Guardian who will look after the child immediately on your death. That person would have priority over the surviving parent (although this can be challenged if the other parent asks for a Residence Order to made in their favour).
3. It does not allow you to change the child’s surname, without either the written consent of the other parent who has parental responsibility or permission from the Court.
4. It does not allow you to remove the child from the UK, without either the written consent of the other parent who has parental responsibility or permission from the Court. The exception to this is that you can take the child temporarily from the UK for a period up to one month, for example on holiday, without consent.
Paul J Watson Solicitor have a specialist Family Law Solicitor, Stacey Phoenix, who can speak to you for free, either by telephone or in an appointment. If you would like to speak to our Family Solicitor, please call 01642 293427. Alternatively, fill in our Contact Form, providing your personal details and an outline of your case, and we will contact you.
We offer legal aid for those who qualify and reasonable private fee paying rates for those who do not.
Our Family Solicitor will talk to you about your case, assessing your circumstances to provide you with sympathetic and caring legal advice.
The advice given in this Guide is general, basic advice only. The law involving residence is complex and you should seek legal advice regarding such issues.