The Family Court no longer make what used to be known as residence orders. Decisions as to with whom a child is to live will be made by way of an all embracing child arrangements order.  This has the same purpose of ‘settling the arrangements … as to the person with whom a child is to live.’

If you and your child’s other parent have separated and you want your child to live with you, but cannot agree this with the other parent, then you will apply to the Family Court for a Child Arrangements Order. The Court will make an Order which will set out with which parents the child will live for the majority of their time and usually also make orders as to time spent with the other parent.

The parent who has the child living with them is called the resident parent and the other parent is called the non-resident parent. When the child spends equal time with both parents, for example, one week with one parent, another week with the other, then the parents are said to have shared (or joint) care of the child. The concept of one parent having custody of a child no longer exists.

The fundamental principle of the child’s welfare set out in the Children Act 1989, Child Arrangements Orders should interfere as little as possible with the relationship of the child with his or her parents. Each parent retains full parental responsibility and indeed all other rights as a parent. The Order simply deals with the question of where the child should live and nothing else. It does not in any way interfere with or deplete theother parent’s position as to his child.

It is intended that a Child Arrangements Order should be flexible enough to accommodate all other matters and possible Orders that could be required to ensure the child’s welfare. Thus where an Order is made the Court will almost always make a Contact Order in favour of the non-resident parent.

Child Arrangements Orders are subject to the general ‘no Order’ principle in the Children Act. Thus an Order will only be made where it can be shown that the making of an Order will benefit the child. This does not however create a presumption against an Order where possibly following mediation matters have been agreed between the parents.

Because an Order does not determine where, but with whom the child is to live, the Court may grant an Order to a party who wishes to take the child to live outside of the jurisdiction of the English Courts. In this case however, the Court, in addition to making the Order, must also make an Order granting permission to remove the child from the jurisdiction.

In deciding a residence application, the welfare of the child is the paramount consideration. However there is a ‘strong supposition that, other things being equal, it is in the interests of the child to remain with one or other of his natural parents.

Judges have referred to the ‘well-established’ ‘natural parent presumption’ which he applied in a case where a mother had learning difficulties. He said that the proper approach was for the Court to ask itself whether there were cogent reasons which dictated that the child could not live with its parent. The House of Lords have however held that this did not mean that there was a ‘presumption in favour of the natural parent’.

The connection between the financial arrangements between divorcing parents and what Order is made as to the children’s residence is important. It is well established that ‘the financial arrangements need to be tailored to implementation of the residence decision’.

Where there is an Order in force, the person in whose favour it has been made can take the child outside England and Wales for up to a month at a time without needing the permission of any other persons who have parental responsibility or the Court. This makes holiday trips abroad easier. Therefore, a Residence Order may be appropriate in a case where one parent unreasonably withholds consent to normal holiday trips abroad or tends to wait until the last minute when travel has become expensive.

Orders are normally made in respect of a child up to the age of 16, but exceptionally may be continued up to the age of 18.

The Court may make a Order of its own motion.  The Order cannot be made in favour of the child itself.

Shared residence

Orders may be made in favour of more than one person. The Court may order that residence is shared between the child’s parents or even between parent and step-parent, grandparents or foster parents. There is no need for the parties to a shared Order to live together. However when a shared Order is made between parents, that Order will cease to have effect if the parents live together for a continuous period of more than six months.

Initially there was case law to say that shared Residence Orders should only be made if the parents agreed and cooperated. This meant that if there was a real dispute and both parents applied for residence or one parent applied for shared residence and the other one did not agree, the Court would not make the Order. This has now changed and the Courts are more willing to make shared Residence Orders in appropriate cases.

A Shared Order does not mean that the child will live one week with one parent and the next week with the other parent, or 3½ days each week with each parent. The time the child spends with each parent can still vary, for example, in a 14-day cycle with 5 of 14 nights with the father and the remaining with the mother, or of course the other way round. This will very much depend on the circumstances including work patterns and location of the parents’ homes and the child’s school. Nevertheless, unequal time can determine maintenance payments through the Child Support Agency.

In A v A (Children: Shared Residence Order), the Court of Appeal moved from previous comments suggesting that shared Residence Orders should only be made in exceptional circumstances. Instead it preferred the test that there needs to be a positive benefit for the child in making such ‘non-conventional’ Orders. On the facts of A v A, the Court of Appeal upheld an Order dividing equally the time the children were to live with each parent outside school term time. Although it has been held inappropriate to make a shared residence solely for the purpose of conferring parental responsibility (Order sought by cohabitant who discovered just before the hearing that he was not the father) it is not necessarily wrong to grant a shared Residence Order for the purpose of conferring parental responsibility.

In Re H (Shared Residence: Parental Responsibility) 5, the Court of Appeal upheld the making of a shared Residence Order so as to vest the step-father with parental responsibility for his step-son, since on the facts it would alleviate the confusion in the child’s mind if he had the comfort and security of knowing not only that his step-father (whom he had only just discovered was not his natural father) wished to treat him as his father but that the law would give some stamp of approval to that de facto position. In Ward LJ’s view, this was a case where a shared Residence Order was ‘not artificial but of important practical therapeutic importance’.

Where a Residence Order is made in favour of two persons who do not live together, the Order may specify the periods during which the child is to live in the different households concerned. Such directions may be general rather than specific and in some cases may not be needed at all. Since a Residence Order only settles the arrangements as to where the child is to live, any other conditions that are needed must be specified separately by the Court acting under the powers vested by s 11 (7 CA) 1989.

Interim Residence Orders

The Court can make an Order as to with which parent a child should live even though it is not in a position to dispose finally of the proceedings’. Such Orders can have effect for a specified period. By these provisions the Court can make interim provision by way of a Residence Order for a limited period. It should be noted, however, that the Act makes no distinction between a final Residence Order and one made as an interim measure. Indeed, as Bracewell J says in S v S (Custody: Jurisdiction), ‘it has become common parlance to speak of ‘interim Residence Orders’, but in fact there is no such creature within the Children Act 1989‘.

Hence all such Orders, even those expressed to last for a matter of days, have the same effect and will, for example, discharge any existing Care Order, confer, for the duration of the Order, parental responsibility on those who do not already have it, and will empower the residence holder to remove the child from the UK for a period of less than one month.

The persons who can apply for a Residence Order

The following may apply to the Court for an Order without first seeking permission (or leave) from the Court:

• a parent (with or without parental responsibility)
• a Guardian
• a stepparent who has treated the child as ‘a child of the family’
• a person with whom the child has lived for at least three years
• any other person who has obtained the consent of all those with parental responsibility.

Persons who do not fall into any of these categories (often grandparents but also sometimes the child) will first have to first obtain permission from the Court to make their application. The purpose of this is to act as a filter from applications that are not likely to succeed and which could cause unnecessary disruption to the child and his parents.

When deciding whether or not to grant leave to apply for an Order, the Court will consider:

– the nature of the application

– the applicant’s connection with the child;

– the risk that the application poses of disrupting the child’s life and causing harm.

The closer the connection of the person seeking leave, the more likely an application will be to succeed.

The basis on which the Court will make its decision

Section 1 of the Children Act 1989 provides that when a Court determines any question with respect to the upbringing of a child, then the child’s welfare shall be the Courts paramount consideration. The Court will consider most carefully the child’s welfare in an issue of such fundamental importance as with which parent and child will live.

A further consideration for the Court laid down in the Act is that the Court must recognize that delay in determining a question concerning a child is likely to prejudice the welfare of the child. In order therefore to minimize delay a Court will usually draw up a timetable with a view to determining a question with the least possible delay and give such directions as appropriate for the purpose of ensuring that the timetable is adhered to. Unfortunately, practicalities and a lack of funding may prevent the Court from strictly following this principle. Sadly, delay is common.

When deciding issues concerning child arrangements the Court must have regard to the ‘Welfare Checklist’.

Number 1 on this checklist is:

‘The ascertainable wishes and feelings of the child which must be considered in the light of the child’s age and understanding’.

The importance of what the child wants and which parent they wish to live with him will depend upon the age and understanding of the child.  If the child is 16 or over it is extremely unlikely that a Court would make an Order contrary to the child’s wishes. Enforcement would in any event be extremely difficult.

With children under 16 years, the Court will take the child’s view into account but not necessarily be bound by it. In the case of young children although their view will be noted, it is likely to be treated with caution. The decided cases have shown that with 5, 6 and 7 year-olds their wishes as to which parent they live with will carry little weight. If there is a suspicion that a child has been coached by a parent, then the stated wishes of that child will be completely ignored.

Next on the welfare checklist is the child’s physical, emotional and educational needs. There are a number of aspects to this.

At one time the Courts would give considerable weight to the consideration that young children should be brought up by their mother. This was based upon the natural bond between young children and their mother but any presumption in favour of this has now been condemned by the Court. This will still be a consideration but the overriding principle is the child’s welfare.

The position at one time could be summed up by the dicta in Re W:

‘If all the factors balanced then probably it is right for a child of tender years to be brought up by his or her mother.’ This presumption has now been condemned by the Court of Appeal who have said:

‘It is not right to make a generalization about young children being best cared for by their mother. As a matter of general experience the individual circumstances of each case vary so much that any generalizations has to be qualified in the light of a sensible grasp of the realities of the relationship between the child and the adults concerned. Further the capacity of the adults to form a loving relationship with the child is of the utmost importance.’

How things work now is well demonstrated by the case of Re S.

Here the parents of a little girl aged two separated when the mother walked out on the family having alleged that she had been assaulted by the father. The mother failed to contact her daughter for some time and the father looked after the child with the help of his family without any difficulty.

Eventually, the mother renewed contact with her daughter and applied for residence. Welfare officer’s reports were prepared which recommended that the mother care for the child. However, the Court at first instance decided that the child would be better living with her father and made appropriate Orders. The mother held onto the child after a contact visit and appealed to a judge who reversed the Order and gave residence to the mother. The father appealed further.

The Higher Court allowed the appeal. The child’s welfare was the first and paramount consideration. There was no presumption that one parent should be preferred to another parent for the purpose of looking after a child at a particular age. It was likely that a young child, particularly a little girl, would be expected to be with her mother but that was subject to the overriding factor that the child’s welfare was the paramount consideration. It was natural for young children to be with mothers, but where there was a dispute, it was a consideration rather than a presumption.

Other cases have confirmed this and the law can be taken as being that it is usual for young children to be with their mothers, but where there is a dispute, this will be a consideration but not a presumption.

That said however, where very young children have been with their mother since birth, the unbroken relationship of mother and child should not be interfered with unless the mother was unsuitable to care for the child. Where the mother and child have been separated and the mother seeks the return of the child other considerations will apply and there is not a presumption in favour of the child being with its mother. Each parent had to be assessed carefully before one could be chosen as the custodial parent.

Another presumption which is often held out is that fathers should care for older boys. If there is such a presumption it is certainly not strong and unlikely to carry much weight with a Court.

A further consideration which can be held out is that a child is best with the parent who can provide the best living conditions.

It is well established that a child’s welfare is not measured by material advantage or physical comfort alone. However, all other things being equal, a parent who can offer a child good accommodation and living conditions may well have the edge over a parent who cannot. In one case a mother was unemployed and cared for the child in basic but adequate conditions. The father was wealthy and owned far superior housing.

The Court considered that the mother was the best person to bring up the child and the father’s material advantages did not outweigh this.

It is generally desirable to keep brothers and sisters together and not to split the family up more than is necessary. This is not necessarily decisive however and often staying contact will mean that the children will meet frequently.

In one case, a mother sought residence for her daughter but not her son. She failed since the Court considered it to be in the children’s best interest that they be kept together.

In another case there was a boy aged three and a girl of 15 months. The mother left with the baby girl and both parents applied for residence of the children. The Family Proceedings Court awarded residence to the father. The matter went on appeal to the High Court where Orders were made in favour of the mother. A further appeal was made to the Court of Appeal. The Lord Justices held that both Courts had been wrong.

No consideration had been given to the practicability and desirability of making an Order giving custody of one child to one parent and the other child to the other parent. The boy here had a very strong bond with his father and consideration should have been given to the children living with different parents.

A Court will always wish to keep a child at the school where he or she is settled. A parent with a better attitude towards educating their child will have an advantage.

If parents propose to live in different countries, the Court will take into account the possible psychological damage that might be done to the Child by removing him from his native country to another. Concerns will be shown where the removal is to a country where the child’s native tongue is not spoken, where he will be separated from the social customs and contacts to which he is used, and where his education may be adversely affected.

A further consideration under the welfare checklist is:

‘The likely effect on the child of any change in his or her circumstances.’

The Courts have always recognized that stability is important in the life of a child. If a child has been in the care of one parent for a long time, the Court would be very reluctant to change that care and disrupt the child’s life with all the upset which a change could cause without a compelling reason. The Court is always anxious to preserve this status quo. Relate this consideration to what we said earlier about not delaying a contact application if you are not seeing your child.

The Courts always prefer children to be looked after continuously by one adult, without there being any break in this provision of care, rather than for a child to be looked after in a fragmented way by a succession of adults. Thus a parent who goes out to work and uses child minders and relatives to look after the child while he or she is away could be at a disadvantage.

Further on in the checklist are the child’s age, sex, background and any characteristics of the child which the Court considers relevant. Many of the factors discussed above would also be relevant here.

The checklist requires the Court to consider any harm which the child had suffered or is at risk of suffering. Thus in one case the mother’s partner had a criminal record and had committed acts of indecency with a child. This more than offset any other advantages she may have had when seeking to care for the child.

Next on the checklist is ‘how capable each of the child’s parents are and any other person in relation to whom the Court considers the question to be relevant of meeting the child’s needs’.

There are several elements to this:

• The Parent’s Conduct

In Children Act cases the behaviour of a parent is only relevant in the way that it affects the child’s welfare. The behaviour of parents to each other may well be considered quite irrelevant. Thus in one case the moral parent, a clergyman who wanted desperately to save his marriage, lost out to an immoral parent, the mother who had left the family and was living in adultery. The Court considered the respective behaviour of the parents as not being relevant.

Misconduct may be relevant but only as throwing light on the probable behaviour of the parents in the future. Bad conduct could tip the scales where each parent has an equal claim. It is accepted by the Courts that when marriages break down spouses can behave in a reprehensible way towards each other but this does not of itself necessarily exclude either spouse from being a good or adequate carer of a child.

Attitudes to contact between the child and the other parent can reveal whether a parent is genuinely concerned with the welfare of the child by allowing the other parent contact to the child or whether a parent is more interested in hurting the other parent by refusing contact, even though it is in the child interest to keep contact with the other parent.

Thus where a father expressed himself as reluctant to allow the mother to have contact if he was given residence, this was taken by the Court as a serious matter and weighed heavily against his claim.

• Parents in homosexual relationships

It has been held that a parent in a homosexual/lesbian relationship was not necessarily unfit to have care of their child. However, such a relationship is important when deciding which of the alternative homes offered by the parents is most likely to advance the child’s welfare. The upbringing most likely to be in the child’s best interest is the one which comes closest to the ideal norm by the standards of society. The Court will usually be concerned about the child’s long-term welfare unless this is ruled out by short-term disadvantages.

Applications for a Child Arrangements Order

The prescribed form for making an application for a child arrangements order is Form C100. They are applications under section 8 Children Act 1989 and this is the prescribed form.

A second form – Form C1a – with additional information must be completed and submitted to the Court with your C100 when the children are at risk or have been exposed to violence.

The Application Forms are not difficult to complete as for now you only need to give basic information. Should your application become contested; then the Court will require you to file further evidence at a later date. The reason for this is so as not to inflame the situation and make early settlement more difficult. The Court will always encourage you and the other parent to come to an agreement yourselves. Arrangements that have been agreed between the parties and not imposed by the Court are far more likely to work successfully and therefore be in the children’s best interest. You will be encouraged by the Court to make use of the mediation service provided by the Court as an aid to agreeing the arrangements.

Where your application is in respect of more than one child, all of the children should be included in the one application. If you are asking for more than one Order (such as Residence and Prohibited Steps) it is only necessary to use the one form.

The Respondent (or Respondents) to your application will be everybody who has parental responsibility for the children. Usually this will just be the other parent but in special cases it could include a guardian, a local authority or other person who has previously been granted a Residence Order.

You can fill in the Form by hand or online. It matters not. Obviously it should be clear and legible and in black ink as it is going to end up being copied possibly scores of times. Remember that this is all about what is best for your child and not about how well you can fill in a form.

If you do not want the Respondent or someone to know your address or telephone number you do not have to put it on the application form. The Court will however need this for service on you of documents and you should complete Form C8 ‘Confidential Address’ and submit it with your application.

You must include details of any other people who live with the children, for example, new partners of a parent, aunts, uncles, and grandparents. You should also tell the Court if the child lives at more than one address. This will help give the Court a complete picture of the child’s living arrangements.

The Court will also need to know if the child is the subject of a child protection plan or known to local authority children’s services. If this is the case it is probable that the Court will seek further information from the local authority.

Most of the information required is obvious, but here are examples of what you might wish to say in Section 7 which asks for why you are making the Application:

‘The children live in unsuitable accommodation, and are neglected and unhappy living with their mother. Accordingly, I ask that I be granted a Residence Order in respect of the children.’

Or, alternatively

‘I believe that in (children’s names) best interests they should live with me at (your address) and attend local schools, with regular and reasonable contact with their mother the Respondent.’

Always deal with contact arrangements for the other parent should you be granted residence. Include a paragraph such as:

‘I have no objection to the Respondent having regular and frequent contact by way of visiting and staying access to the children, and I am quite sure that that can be agreed between us.’

If you are applying for a shared (joint) residence) Order, you may wish to say:

‘I seek a Shared Residence Order providing that (names) should reside with me at (address) for part of each week, and the remainder of the week with the Respondent at (address).

The children have at all times been brought up by both the Respondent and me. There is a close bond between us. They enjoy extended contact with me already, but I think it would be in their interests if the week were more equally split between the Respondent and myself. As we live in the same neighborhood there is no question of the children being removed from existing schools or friends.

I propose that the children should stay with me for Fridays after school until Monday mornings, and with the Respondent from after school Mondays until Friday morning. They will continue to attend the same schools. I am also quite prepared to exchange some weekend stays with mid-week stays so that the Respondent can enjoy week-ends with the children when she wishes.’

Don’t forget to sign and date the form and it is then ready for issue at Court.

Once completed, your application must be issued at Court with sufficient copies to be served on each respondent. If there is only one Respondent it will therefore be necessary to make 3 copies of the application. One is for service on the Respondent, one for the Court and one for sealing by the Court and return to you.

There will also be a Court issue fee to pay unless you are entitled to a fee remission. The current Court fee is £200.

HM Court services publish a guide to entitlements to fee remissions which is available online here. You may not have to pay a Court fee if you are in receipt of a specified means-tested benefit; or your gross annual income does not exceed a specified limit; or you would suffer undue financial hardship.

It is your responsibility to serve the endorsed copy of the application on the respondent not less than 14 days before the date fixed for the hearing. Copies must be served upon every person with parental responsibility and any other parties involved with the child or who has previously been involved in Court proceedings concerning the child.

Send or give the papers to the Respondent. He or she then has 14 days to acknowledge receipt of the application (to the Court who will advise you of what they say) and if they intend to oppose your Application.

Once an application has been made it can only be withdrawn with leave of the Court.

The Court will have fixed a date for a hearing (or Directions Appointment) when both you and the Respondent will be required to attend. This has to be as soon as possible and the Court is required to actively manage the case to avoid delay.

A CAFCASS officer will usually be present at Court when you arrive to encourage you and the Respondent to reach agreement. At some Courts you and the Respondent will have a meeting with the CAFCASS officer before going to see the Judge and at other Courts the Judge may see you both first and then adjourn for you to meet with the CAFCASS officer.

If agreement is possible it will usually then be a case of just going before the Judge (or magistrates) with the CAFCASS Officer who will explain matters and what has been agreed. The Court can then be expected to make an Order in the agreed terms. There is however a ‘no Order’ principle under the Children Act and it is possible that the Court will consider that where agreement has been reached there is no need for an Order.

If no agreement is possible the Court will usually fix a further appointment, set a timetable and give further directions. If appropriate Interim Orders will be made and in most cases a CAFCASS report will be ordered. This will be a report by a CAFCASS officer who will visit and speak to everybody involved with the children and make recommendations to the Court. Unfortunately, it can take at least 3 months for the preparation of the report.

Normal directions include statements being filed by all parties within a specified time limit.

Once the CAFCASS report has been prepared, a further Directions Appointment will be fixed for a further chance to agree matters, based on the report recommendation. If one party does not accept the recommendation the case will be set down for a final hearing before a Circuit Judge.

The parties must then file bundles of evidence with the Court not less than four days before the hearing date. The bundle should include copies of all documents relevant to the hearing in chronological order in sections.

All parties will attend the hearing with their witnesses and give evidence.

The Court will give its judgment which must be recorded in writing with the reasons for the decision.

 

Cases

M (Children) (2012) EWHC 1948 (Fam)

This case concerned two children aged 10 and 8, and the father’s application for a transfer of residence. The children lived with the mother and her partner. Contact with the father had broken down, and it was clear that the mother was influencing the children against the father. The mother subsequently relocated from Blackpool to Devon without notice to the father and disengaged with the proceedings. A Guardian was appointed and recommended there be limited contact of twice per year for four hours, despite contact having taken place successfully and frequently. The Guardian was subsequently replaced by the Judge as a result of her flawed approach.

The father’s application for residence was listed for hearing before Jackson J, who found that the mother did not consider the children needed a relationship with their father and was not supporting contact, and that the children wanted to see their father but were being prevented from doing so. The judge found that the children’s welfare would be best promoted by living with their father unless the mother was able to promote contact.

In carrying out a fine balancing exercise the judge found that the change in residence and associated disruption to the children was a risk, and therefore decided that the children remain in the care of the mother. However, in the event the mother failed to facilitate staying contact with the father, there would be a transfer of residence to the father, and an application for the recovery of the children should be made if the mother refused to give the children up.

The judge decided that a conditional Order would best promote the children’s welfare and set out the mechanics of the Order as follows:

‘A conditional Residence Order is in my view appropriate where the Court can confidently foresee the circumstances in which it might come into effect. I therefore limit it to the period of the next eight weeks. Thereafter, and until the end of next year, the Order will not automatically come into effect if there are failed contacts, but if there are, the father can restore his application before me for an early decision.’