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Residence - overviewGeneral principles
A residence order is one of the four orders that the court can make under the Children Act 1989 (ChA 1989), s 8. It is an order setting out the arrangements to be made regarding the person with whom a child is to live. It does not determine the location in which the child is to live. The order may be made in favour of more than one person and residence may be shared. When making a residence order, the child's welfare is the court's paramount consideration. The court must take into account the statutory checklist and any other factors that it considers relevant. It must also consider whether it would be better for the child for an order to be made rather than making no order at all.
A residence order may be made as a consequence of a free-standing application or in family proceedings that affect the upbringing of the child, including, for example, proceedings for divorce under the Matrimonial Causes Act 1973 or a dissolution order under the Civil Partnership Act 2004. An interim order may be made for a fixed period.
The court cannot make an order for residence of a child (unless by way of variation or discharge of an order) who has reached 16 unless it is satisfied that the circumstances of the case are exceptional. With effect from the 1 September 2009 the ChA 1989 was amended (by the Children and Young Persons Act 2008 (CYPA 2008)) to raise the age at which a residence order automatically ends from 16 to 18.
ChA 1989 sets out the categories of applicant who can apply without leave (permission) for a residence order, including:
any parent, including an unmarried father without parental responsibility
any step-parent who has acquired parental responsibility
anyone with a residence order in their favour
any party to a marriage or civil partnership in relation to whom the child is a child of the family
Anyone who is not entitled to apply for a residence order without leave (permission), including the child, requires leave (permission) to make such an application. If a special guardianship order is in force with respect to a child, an application for a residence order may only be made with leave of (permission from) the court.
Proceedings may be issued in the family proceedings court, the county court or the High Court: see Children - Procedure.
The applicant must file a Form C100 and, where there is an allegation of abuse, violence or harm, a C1A. The Family Proceedings Rules 1991 (for applications issued prior to 6 April 2011) or the Family Procedure Rules 2010 (FPR 2010) (for applications issued on or after 6 April 2011) prescribe who will be a respondent. The applicant must serve the respondent with the prescribed forms and file a statement of service. A first hearing dispute resolution appointment, will be listed by the court in accordance with the Revised Private Law Programme, which is now Practice Direction 12B of the FPR 2010.
If leave (permission) is required, Form C2 is filed, setting out the reasons for the application with a draft of the application in respect of which leave (permission) is sought.
Joint residence orders
ChA 1989 provides that a residence order may be made in favour of two or more persons who do not themselves live together. Such an order may specify the periods the child is to live in the different households. Joint residence has become known as shared residence. Such an order may be made, for example, where the child spends weekdays with one parent and weekends with the other. Shared residence arrangements are becoming increasingly popular and have received judicial approval.
The effect of a residence order
Amongst other things a residence order:
determines with whom the child is to live
confers parental responsibility on a person who would not otherwise have it: the responsibility lasts as long as the order remains in force
confirms that no one may cause a child to be known by a new surname or, remove them from the UK, without the written consent of every person with parental responsibility for the child or leave of (permission from) the court; it is, however, possible for a person with a residence order in their favour to take a child out of the jurisdiction for a period of less than one month
Where a child's parents each have parental responsibility and a residence order is made in favour of one parent, that order will cease to have effect if the parents live together for a continuous period of at least six months.
Enforcement of residence orders
A residence order made in the magistrates' court may, provided that the order has been served on the other party, be enforced under the Magistrates' Courts Act 1980. This may result in payment of a fine or imprisonment. In the High Court and county court failure to obey an order is punishable with committal or sequestration until the child is produced to the person named in the order.
There are provisions in the Family Law Act 1986 to assist in enforcing residence orders where, for example, a person refuses to deliver up a child. The court can, in appropriate cases, make an order authorising an officer of the court to take charge of a child to deliver them to the person concerned. There are also powers to order disclosure of a child's whereabouts. Where there are concerns that a child may be removed from the UK, consider requesting an all ports warning. The court can order the surrender of a passport relating to a child. In relation to abduction in breach of a residence order, see Emergency procedures.
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