Residence Order

Definition and Scope of Residence Orders

A residence order, now part of a broader Child Arrangements Order, determines where and with whom a child will live. These orders were previously standalone under the Children Act 1989 but have since been incorporated into CAOs to simplify and clarify the terminology and processes involved. Despite this change, the fundamental purpose remains the same: to secure stable and appropriate living arrangements for children whose parents are no longer together.

Legal Framework and Key Provisions

The legal framework for residence orders, and now CAOs, is established under the Children Act 1989, with significant amendments introduced by the Children and Families Act 2014. Key provisions include:

1. Section 8 Orders: This section of the Children Act 1989 encompasses various types of orders that can be made by the court, including residence orders (now CAOs), prohibited steps orders, and specific issue orders.
2. The Welfare Principle: Under Section 1 of the Children Act 1989, the child’s welfare is the court’s paramount consideration in all decisions concerning their upbringing. This principle underpins all aspects of CAOs, including residence orders.
3. The Welfare Checklist: Section 1(3) of the Children Act 1989 provides a checklist of factors that the court must consider when determining a CAO, ensuring that all relevant circumstances are taken into account to achieve a fair outcome for the child.
4. Parental Responsibility: Parental responsibility refers to the rights, duties, powers, responsibilities, and authority a parent has in relation to their child. Both parents typically share parental responsibility unless it has been removed by a court order.

Types of Residence Orders

Residence Orders can be tailored to suit the specific needs and circumstances of the child and their family. The main types of Residence Orders include:

1. Sole Residence Orders: A Sole Residence Order is granted when a child will live with one parent exclusively. This type of order is common in situations where one parent is deemed to be the primary caregiver or where there are concerns about the other parent’s ability to provide a safe and stable environment.
2. Shared Residence Orders: Shared Residence Orders allow a child to live with both parents at different times. This arrangement promotes the involvement of both parents in the child’s life and can be structured to suit the child’s needs, ensuring stability and continuity in their upbringing.

Principles Guiding Residence Orders

The court is guided by several key principles when making Residence Orders:

1. The Child’s Welfare: The child’s welfare is the paramount consideration. The court prioritises the child’s needs and best interests over those of the parents.
2. The Welfare Checklist: The court considers the factors outlined in the welfare checklist, including the child’s wishes and feelings, their physical and emotional needs, the likely effect of any change in circumstances, and any harm they have suffered or are at risk of suffering.
3. Parental Involvement: The court recognises the importance of both parents being involved in the child’s life, provided it is safe and in the child’s best interests. There is no presumption of shared residence, but the court seeks to ensure meaningful involvement from both parents.
4. Avoiding Delay: Delays in making decisions about a child’s future can be detrimental to their welfare. The court aims to resolve matters as promptly as possible.

Process of Applying for a Residence Order

The process of applying for a Residence Order involves several stages:

1. Mediation and Dispute Resolution: Before applying to the court, parents are required to attend a Mediation Information and Assessment Meeting (MIAM) to explore the possibility of resolving disputes through mediation. Exceptions apply in cases of domestic violence or urgent issues.
2. Filing an Application: If mediation is unsuccessful or inappropriate, an application for a Residence Order can be made to the Family Court using Form C100. The application should include details of the proposed arrangements and any relevant supporting information.
3. First Hearing Dispute Resolution Appointment (FHDRA): The first court hearing, known as the FHDRA, aims to identify the issues in dispute and encourage settlement. The court may make interim orders and give directions for further hearings or expert reports.
4. Fact-Finding Hearing: In cases involving allegations of domestic violence or other serious issues, the court may hold a fact-finding hearing to establish the facts before making a final decision.
5. Final Hearing: If the parties cannot agree, the case proceeds to a final hearing. The court will hear evidence from both parties and any experts and make a binding decision on the residence order.

Challenges and Considerations in Residence Orders

Several challenges and considerations can arise in the context of Residence Orders:

1. High-Conflict Cases: High-conflict cases, particularly those involving allegations of domestic violence or abuse, require careful handling to ensure the child’s safety and well-being. The court may involve CAFCASS (Children and Family Court Advisory and Support Service) to provide independent assessments and recommendations.
2. Parental Alienation: Cases involving parental alienation, where one parent attempts to undermine the child’s relationship with the other parent, can be complex and emotionally charged. The court must carefully assess the impact on the child and take appropriate measures to protect their best interests.
3. Relocation: Applications involving relocation within the UK or abroad require careful consideration of the potential impact on the child’s relationship with both parents. The court will weigh the benefits of the proposed move against the potential disruption to the child’s life.
4. Special Needs: Children with special needs may require tailored arrangements to accommodate their unique requirements. The court will consider the child’s specific needs and the ability of each parent to meet those needs.
5. Cultural and Religious Factors: Cultural and religious factors can play a significant role in Residence Orders. The court aims to respect and accommodate the child’s cultural and religious background while ensuring their welfare.

Notable Case Law and Judicial Interpretations

Several landmark cases have shaped the principles and application of residence orders in the UK:

1. Re G (Residence: Same-Sex Partner) [2006] UKHL 43: This case established that the court must consider the child’s welfare as the paramount consideration, regardless of the parent’s gender or sexual orientation. The decision emphasised the importance of the child’s relationship with both parents.
2. Re B (A Child) [2009] UKSC 5: The Supreme Court highlighted the importance of the child’s welfare and the need for a holistic approach when considering residence orders. The judgement stressed that the child’s best interests should be the guiding principle in all decisions.
3. Re H (A Child) [2014] EWCA Civ 733: This case addressed the issue of parental alienation and the court’s approach to ensuring the child’s relationship with both parents. The court emphasised the need for early intervention and the use of expert assessments to address alienation.
4. Re C (A Child) [2013] EWCA Civ 1157: The Court of Appeal considered the issue of relocation and the factors that the court must consider when deciding whether to allow a parent to move with the child. The judgement emphasised the need to balance the benefits of the move with the potential impact on the child’s relationship with the other parent.

Practical Applications of Residence Orders

Residence Orders can be applied in various contexts to ensure that the child’s best interests are met:

1. Sole Residence: Sole residence arrangements can provide stability and consistency for the child, particularly where one parent is better able to meet the child’s needs. This arrangement may be appropriate in cases where there are concerns about the other parent’s ability to provide a safe and supportive environment.
2. Shared Residence: Shared residence arrangements can promote the involvement of both parents in the child’s life, providing stability and continuity. The court considers the practicalities of shared residence, including the distance between the parents’ homes and the child’s routine.
3. Supervised Contact: In cases of concerns about a parent’s ability to care for the child safely, the court may order supervised contact. This ensures the child can maintain a relationship with the parent in a controlled and safe environment.
4. Holiday Contact: Residence Orders can include provisions for holiday contact, allowing the child to spend time with each parent during school holidays and special occasions. This helps maintain a balanced relationship with both parents.
5. Indirect Contact: In situations where direct contact is not feasible or safe, the court may order indirect contact, such as letters, phone calls, or video calls. This ensures the child can connect with the parent while safeguarding their welfare.

Conclusion

Residence Orders, now encompassed within Child Arrangements Orders, are an essential part of family law, ensuring that the best interests of children are prioritised during and after the breakdown of parental relationships. At DLS Solicitors, we are dedicated to offering expert legal advice and representation to guide our clients through the complexities of residence orders.

By comprehending the legal framework, principles, and factors involved, we can assist our clients in achieving fair and just arrangements that promote the welfare of their children. Whether through negotiation, mediation, or litigation, our aim is to safeguard our clients’ interests and secure the best possible outcomes for their families. As family law continues to evolve, staying informed and adaptable is crucial for achieving successful outcomes concerning residence orders.