In a Nutshell: Applying for a ?residence order

What does “residence” mean?
When the relationship of a couple with a child breaks down and the parents no longer live together, “residence” is the term used to describe the child’s primary living place. The parent with whom the child primarily lives is the resident parent, while the other parent is the non-resident parent. The resident parent is responsible for making day-to-day decisions about the child’s upbringing.

However, if there is another parent with parental responsibility for the child, they should be involved in any major decision making concerning the child, such as where the child will attend school, what religion the child will be brought up in and the child’s name.

How do parents decide where the child should live?
Ideally, parents will decide jointly who the resident parent will be and how often the child will have contact with the non-resident parent. If parents are able to decide this themselves, there is no reason for the arrangement to be formalised through a court process.

If parents are not able to agree on residence for their child following the breakdown of their relationship, there are three main options available to them. They can seek the assistance of a family mediation service to help them reach a compromise. If they are unable to resolve their disagreement through mediation, parents can ask solicitors to assist them in negotiating an agreement. And if the parents are still unable to reach agreement, one parent can make an application to the court for a residence order.

What is a residence order?
A residence order is a court order that states who the child should live with. The court may decide not to grant an order; to grant an order for shared residence (i.e. the child spends equal amounts of time with each parent); or to grant an order for sole residence that will usually address contact for the non-resident parent. Parental responsibility is automatically given to the person who obtains a residence order, if they do not already hold parental responsibility.

Carers other than parents can apply for a residence order. For example, grandparents can apply for a residence order to obtain parental responsibility for a grandchild who is living with them. Section 8 of the Children Act 1989 gives a definitive list of people eligible to apply for a residence order. Those not included on the list can also apply for a residence order if they have been given leave from the court to do so.

How do courts decide who the child should live with?
The child’s welfare will be paramount when the court makes a decision. To achieve this, the court may, in highly disputed cases, ask Cafcass to make a report to the court. The children and family reporter will meet with all parties and will talk to the child to find out what his or her wishes and feelings are.

Depending on the circumstances, the reporter may also speak to the child’s school, doctor, social worker and relatives. The court will take recommendations made by Cafcass seriously, and will usually follow the advice of the reporter. If it does not follow the recommendations, the court must give reasons why.