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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?

It is important to take advice and give serious thought before issuing an application to the Court for a Residence Order.  An application to the Court can be stressful and have an unsettling effect on the family and especially children.  If you require further advice or assistance with regard to the issue of residence, please do not hesitate to contact us or call our mobile friendly number 033 33 22 1000 or 0800 987 8156 to book an initial consultation with our Family Law Solicitor.

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