Child Arrangement Order – Residence

If there is a dispute over Residence of a child and it is left to the Courts to make a decision, they have to make considerations along the same lines as in Contact applications (as set out in Section 1 of the Children Act 1989), such as:

• The wishes and feelings of the child as far as can be determined (considered in the light of the child’s age and understanding).

There is no strict rule as to the age when a child’s wishes and feelings should be taken into account. The older the child, the more likely it is that the Court will take account of that they think.

• The child’s physical, emotional and educational needs.

For instance, if transferring residence meant uprooting a child from a school that they were settled at and enjoyed attending then this may not be considered in the child’s best interests.

• The likely effect on them of any change of Circumstances.

For instance, the Courts consider stability important for a child and therefore believe that changing a child’s circumstances should only be done as a last resort.

• “Any other person” who is likely to affect the child if residence is transferred is also taken into account.

For example, the applicant’s new partner. Their history therefore becomes relevant and if there is a negative history, such as a conviction for sex offences, violence or drug abuse this will undoubtedly affect the Application for residence and could mean that it will be rejected.

Above all the court has to consider the child’s welfare first and foremost over any of the other parties welfare or point of view (although these are taken into account also) and therefore any decision is made upon what is considered to be in the best interests of the child.

Yes, in the same way as over contact issues. The age of the child and their ability to make decisions and understand the consequences of their decisions is taken into account. An older child is therefore more likely to be considered and their decision taken account of as to where they want to reside then a very young child.

Yes, the Courts do make Orders that will share Residence of children between the parents. The Courts will only make this decision if it is seen as being beneficial to the child’s welfare. The division of time does not necessarily have to be 50/50 between each parent.

You can provided you have permission of the Court and you would have to apply for this first. The Court will take into account the following when considering an application for Leave:

• The Nature of your Application
• Your Connection with the child
• Any risk that the proposed application may disrupt the child’s life so much that the child become harmed
• If the child is in Care there are further considerations the Courts will take into account.

Although there is no guarantee that Residence will be granted, the following can automatically apply for Residence (without having had to first apply for permission of the Court):

• Any parent, guardian or special guardian of the child
• Any person with Parental Responsibility for the child
• Any person with a Residence Order in force for the child
• Any party to a marriage where the child has been accepted as a child of the family
• If there is a Civil Partnership, then either partner, so long as the child is a child of the family
• Any person with whom the child has lived with for three years or over.

It would have to be deemed to be in the child’s best interests for any order to be made. The court always has to consider the “no order” principle.