Residence orders settle arrangements regarding whom the child is to live with. There can be no requirement for the resident parent and the child to live at a specified address, the order can merely specify with whom the child lives. A condition to live at a certain address has been seen by the courts to be an unjustified interference with the right to choose where to live in the UK.
A residence order does not have an effect of removing the parental responsibility from any parent of the child or other person who has such. The order does automatically grant parental responsibility on the person with whom the child lives since it is important for them to have the opportunity to have their voice heard in respect of matters affecting the child’s upbringing, education etc.
However, even if a person has PR but is not a parent or guardian, that person will be prevented from giving consent to adoption, freeing for adoption, and appointing a guardian for the child.
In further restriction, a residence order does not give a right for a change of the child’s name or for the child to be removed from the jurisdiction for more than one month without the consent of all persons with parental responsibility or the leave of the court.
Shared/joint residence orders
A residence order can be made in favour of more than one person. If those people are not living together then the order may specify the periods that are to be spent in the respective households.
There was for long a negative judicial attitude towards shared residence orders. The reasoning being that the courts perceived it to be a disadvantage for the child not to be settled in one place. It was further considered that moving between two competing homes could lead to confusion and stress. However, nowadays the courts are more relaxed and positive about such orders and it is no longer necessary for exceptional circumstances to be present for a shared order to be granted.
For a shared residence order to be granted there is no need for the time between the two parents to be divided equally. It has been considered that where the home offered by each parent is of equal status and importance to the child, a shared order may be valuable.
The decision whether to make a shared order is a discretionary matter for the judge. That discretion is considered in particular in light of the principles of the welfare checklist.
What factors is the court to take into account?
Of importance will be the welfare principle as a paramount consideration including the welfare checklist taking into consideration the wishes of the child/children of the family.
Further, in consideration of joint residence orders, the distance between the homes and the relevant necessary arrangements to take place in both the homes would also be of importance.
How is the order made?
It could be made without notice but if so it should only be for a limited period of time and only in extreme circumstances where it is necessary for the protection of the child. Relevant examples could be seen in situations where the child has been snatched or there is risk of child abduction or some other immediate danger.
There are two competing considerations in without notice applications- the child’s long term welfare and the short-term need for protection. Therefore, where an urgent need is presented to protect the child, the order will often be made. However, it is important to remember that courts always approach those situations with extreme caution.
Where the party who was absent when an ex parte order was made wishes to challenge the order, the appropriate course of action is for him to apply to the judge who made it to vary or rescind the order. This is to be done on a short notice unless the case is wholly exceptional.
Who can apply?
In general the provisions regarding who may apply are broadly similar to applicants for contact orders. Therefore, generally parents, guardians and others who have PR may apply for residence orders. On the other hand, others would require the leave of the court prior to making an application.
However, it is important to note that a local authority may not apply for a residence order nor have one made in its favour. However, a residence order may be made in respect of any child, even if it is subject to a care order.
Discharge of residence orders?
A residence order will usually end upon the child in question reaching the age of 16. An exception to that could be if the order is made in respect of parents each of whom have parental responsibility, then the order will cease if they live together for a period of more than 6 months.
Alternatively, if a care order is made in respect of that child, then any residence order will be discharged automatically. Conversely, if a child in care is made the subject of a residence order, then the care order will be discharged automatically.