Residence

This is a brief guide on the law and procedure relating to applications for Residence Orders.It is not an exhaustive explanation of the law, but is designed to assist you in taking most of the steps yourself with a view to keeping legal fees to a minimum. However, you should always seek specialist legal advice if you find yourself in difficulty.

What is a Residence Order?

A Residence Order decides where a child is to live and who they are to live with.  You cannot change the name of a child or take them out of the country for more than 1 month without the permission of everyone with parental responsibility.

There is a presumption that a child will live with the primary carer, and given that most children are brought up by their mother in the early years this is why the myth has developed that the mother will usually obtain a Residence Order. As with any Order under the Children Act 1989, the Court's main concern is the welfare and best interests of the child. If there is a conflict between the rights and interests of a parent and a child, the child's interests will prevail. However, it is common for residence disputes to arise from the more fundamental fact that a child is telling both parents that they want to live with them.

How does the Court decide what is best for the child?

The Court will always apply the when deciding how to deal with issues relating to children. The Court is likely to require assistance in gathering the information required and they may obtain a report from a Probation officer, Local Authority Social worker, or, as is more usually the case, a member of CAFCASS (the Children and Family Courts' Advisory and Support Service). The Court is also likely to be of the opinion that any delay in determining matters relating to the Child's welfare is likely to be prejudicial to the Child, and therefore they will draw up a timetable for the proceedings.

Who can apply for a Residence Order?

There are two categories of applicant, those able to apply as of right and those who require the leave of the Court to apply. A parent or guardian of the child (even if they are an unmarried father without parental responsibility), or anyone that the child has lived with for three of the past five years, will be able to apply as of right. If not, it will be necessary to seek leave (permission) of the Court before applying.

The Application

An Application for residence can be issued in the Family Proceedings Court, County Court or High Court. If there have been divorce proceedings the Application would normally be issued in the Court where the divorce was or is being dealt with. While it would be normal for most Applications in other cases to be issued in the Family Proceedings Court, a lot of lawyers prefer bringing the proceedings in the County Court. The matter is then dealt with by experienced judges, rather than Magistrates, and it does not cost any more.

The First/Directions Hearing

At this hearing most Courts will have a social worker/CAFCASS Officer available to try and mediate the dispute between the parties. Certain cases, such as where there has been violence, may not be suitable for mediation. If the mediation resolves the matter then an Order can be entered straightaway.

If the matter does not resolve then the Court will usually prepare a timetable for the proceedings, decide whether the child is to attend Court and give a list of documents which must be served. They will also consider whether a CAFCASS report is required, and whether it is necessary for a CAFCASS officer to attend any final hearing. A report may take between 14 and 18 weeks to prepare and the Court will give their reasons for requiring the report. In some cases, other reports (for example a psychologist's report, or a report from the local authority if a social worker has been involved) may be necessary. The Court will not order a report without good reason. The First hearing is usually used to resolve as many of the issues between the parties as is possible.

Attending Court

Dress smartly. Address the judge as Sir or Madam when speaking to them. Do not interrupt the judge or anyone else who is speaking. You will be given a chance to put your case. It is generally accepted by the judges that you do not agree with everything the other side is saying, so you do not have to keep interrupting to make this clear. Where you have a legal representative they will speak on your behalf, although the judge may have some questions for you. If you are acting on your own then you should try to take notes of what is discussed and you should DEFINITELY take a note of anything you need to do and the timescales for this. All hearings will be in private and you are not required to have a lawyer representing you.

The Review Hearing

Most Courts will list a review hearing for further consideration of the matter prior to trial once the CAFCASS report is received. The Court may hold back on requiring statements in the meantime and then Order them at this stage.

The Final Hearing

The Applicant will normally give evidence first, followed by any further witnesses they have, and then the Respondent, followed by any other witnesses they may have. The Court must give all findings of fact and reasons for the decisions. When considering the matter the Court will apply the .

If the Court makes an order, normally that Order will only last until the Child reaches the age of 16 or, in exceptional circumstances, 18.

Costs

It is rare for any party to be Ordered to pay the costs of a contact application.The normal rule is that each party will pay their own costs, including any legal costs.

Withdrawing an application

An application can only be withdrawn with the Court's permission.

When do I need a Solicitor?

The general rule is that if you feel that you are getting in over your head then you should seek legal advice. However, givent he importance of residence issues to the parties involveed we always recommend you seek legal advice before applying for residence.

Where you do attend a hearing on your own and the other side is legally represented their lawyer will be professionally obliged to explain any procedural issues to you and if you need guidance you should ask them before going into Court.

It is a matter for you whether you wish us to represent you at the first hearing. If you feel able to deal with this then we would recommend you only pay for advice on any issues you wish to have explained further.

If the matter does not resolve at the first hearing then you should consider instructing us.In any event, we strongly recommend that you instruct us well in advance of any deadline for filing and serving statements.Where you are considering taking legal advice you have to bear in mind that the later you speak to a lawyer the less they can do to help.

If you would like us to represent you at a hearing it is important that you tell us at least 14 days before the hearing.Remember, the earlier you instruct us, the more use we can be, especially if you would like us to assist you in preparing witness statements or for trial. Either complete the attached checklist and send it in with any relevant papers or, alternatively, you are always free to contact us for an initial consultation up to 30 minutes at no charge.

Please remember, we are always here if you need us but to be able to help you properly we need warning and information.