A Residence Order decides where a child is to live and who they are to live with. When a Residence Oder is made in your favour then you will automatically have parental responsibility for the child if you do not already have it.
Where you have a Residence Order in your favour you are entitled to decide issues over day-to-day management of the child's life, but 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.
A Residence Order will normally last until the child reaches the age of 18, unless the Court directs otherwise.
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.
How do I apply?
Before applying to the Court you should consider whether they may be more effective ways of achieving your aims. Further guidance is given in our alternatives to Court page.
If legal proceedings are necessary then you should consult our Court Proceedings information.
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, given the importance of residence issues to the parties involved we always recommend you seek legal advice before applying for residence.
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