Residence

Sadly it is not always possible for parents to agree how the children of the relationship should be looked after or even how often the parent who does not live with child should see them. It is often the case that the child remains in the former family home with the parent who looked after them most of the time, but every situation is different and the situation can be complicated by other issues such as allegations of Domestic Violence.

Sometimes parents cannot agree which of them was the child's main carer or who should look after the child now that the relationship is over. In cases where parents can't agree it may be possible to sort out the disagreements through mediation. If this isn't appropriate, as not all cases are suitable for mediation, or if it is unsuccessful then the issues may have to be decided by the Court.

In deciding who will care for the child the Court's main concern will be the child's welfare and what is in their best interest. The Court will also consider a number of other factors, such as the age and background of the child and whether the child is at risk of any harm. Your solicitor will discuss the way the Court makes its decision with you in detail. Court cases involving disputes regarding Residence can be lengthy and traumatic for everyone, sadly including the child as though of course the child should be shielded from the adult's disputes, parents do not always manage to do this. If it is possible to come to an agreement then this is preferable, but in many cases this is not achievable. Sometimes parents even come to an agreement once Court proceedings have started.

In deciding which parent should care for the child the Court will consider a number of factors, such as the child's age, background and whether the child is at risk of suffering harm. The Court may also ask the child what their feelings are. This is not done directly, but through the Court's welfare officers, who are called CAFCASS officers. The CAFCASS officer will speak to both parents outside of Court and also to the child, if the child is old enough. The CAFCASS officer is also likely to arrange to see the child in the presence of both parents. Once the CAFCASS officer has spoken to everyone they will prepare a report, which will recommend what contact is suitable. A major disadvantage to going to Court is that it can be a long process, as it can take up to four months for CAFCASS alone to complete their investigations. The Judge is very likely to follow the CAFCASS officers recommendations and there is usually a short hearing following the CAFCASS report to see if it is now possible for the parents to agree. This is often the case and avoids the need for a full trial which can take an entire day or longer and as the Judge will want to question both parents and look into the situation in detail, it can result in more bad feelings between the parents.

The Court can make a number of orders under the Children act 1989.

1. The Court can grant a Residence Order. A Residence Order simply states who the child should live with and who should have the day to day care of the child. This is usually in favour of one parent, but it can be in favour of another family member or even more than one person. An order in favour of more than one person is called a Joint Residence Order and is usually granted when both parents and guardians are able to co-operate together regarding the child's upbringing. A Residence Order grants the person Parental Responsibility, if they did not already have this.
2. The Court can make a Contact Order in favour of the parent who does not live with the child to ensure that the child keeps a relationship with both parents. This can just say that the parent who the child does not live with has reasonable contact with the child or it can have a lot of detail about where and when contact should take place.
3. The Court has the power to make decisions regarding a child's upbringing. Such Orders are called Specific Issue Orders. These Orders are usually made is there is some part of the child's upbringing that the parents cannot agree about, such as the child's education or holidays.
4. The Court can make a Prohibited Steps Order to prevent a parent doing something they are usually allowed to do. This might be removing a child from school, removing a child from the other parent's care, or even removing the child out of the country.