A Residence Order is an Order settling the arrangements to be made as to the person with whom a child is to live. This is sometimes referred to, and used to be referred to, as “custody”.
If there is a dispute as to where the child should reside, a parent of a child can apply at any time to the Court for a Residence Order. Other people connected to the child, such as grandparents, aunts, uncles or older brothers and sisters of a child would need to apply to the Court for the Court’s permission to issue an application in the first instance.
The procedure for applying for a Residence Order is as follows: –
- Original application to the Court is made with a Court fee.
- The Court arranges an initial appointment, usually approximately 21 days after receiving the application. Papers are then sent to the other party.
At the First Appointment, an Officer of the Children and Family Court Advisory and Support Service (CAFCASS) is usually present and the parties are given the opportunity to see him or her to discuss the case and see if any agreement can be reached. The Courts believe that the best people to make decisions in respect of the child are the parents and will, therefore encourage the parties to try and discuss matters to see if an agreement can be reached without Court intervention. If an agreement can be reached, the agreement can then be detailed before a Judge who can put the agreement into a Court Order and/or adjourn proceedings; make other Orders.
If no agreement can be reached, the matter will go before the Judge who will suggest a timetable for how the case is to proceed.
Under the Children Act 1989 the Court has to give paramount consideration to the welfare of the child when deciding whether or not to make a Residence Order. The Court has to pay specific attention to the following criteria: –
- To ascertain the wishes and feelings of the child concerned (considering the child’s age and understanding)
- His or her physical, emotional and educational needs
- The likely effect on him/her however of a change in circumstances
- His or her age, sex, background and any characteristics of his or hers which the Court considers relevant
- Any harm which he or she has suffered or is at risk of suffering
- How capable each of the parents are and whether the person in relation to whom the Court considers the question to be relevant, is of meeting his or her needs
- The range of powers available to the Court
The Court must also give consideration to the status quo. If the children are settled in their current situation are there sufficient reasons to change that status quo and potentially unsettle or disrupt the children?
If you require help then our Family Solicitors will be able to assist you with your query. We will always aim to seek a solution or resolve your case / matter outside of the court. Our specialist Family Solicitors understand that family problems can prove extremely stressful and worrying, but ignoring these issues will not make them go away. If you are struggling with Family matter, please Contact us for advice from our specialist solicitors.