Residence and Contact

After separation, parents need to decide where their child or children should live and how much contact the children will have with the party with whom the children do not live (the non-resident parent).

Residence (which used to be called custody) states with which parent a child should live on a permanent basis and who should be the child’s primary carer.  Contact (which used to be called access) is about the arrangements for the child to spend time with the non – resident parent.

If you can agree these arrangements for residence and contact between yourselves, you will not need to ask the court to become involved.  Reaching an agreement now does not prevent either parent from making an application to court at a later date, if the arrangements break down or if one party changes their mind.

If parents cannot agree the arrangements they could consider attending Mediation (which, usually will be a pre – requisite to obtaining Legal Aid) or consulting a solicitor to try and negotiate arrangements.  A solicitor can write to your former partner setting out your suggestions for where your child should live and the arrangements for contact.  If no agreement can be reached in this way, either you or the other parent can make an application to the court for a Residence Order and/or a Contact Order.

The law relating to residence and contact is set out in the Children Act 1989.  This states that when the court makes any decision about a child, the child’s welfare must be considered above everything else.  When making a decision the court must consider all of the child’s circumstances.  These factors include:-

1. the ascertainable wishes and feelings of the child concerned (which is considered in the light of his age and understanding);
2. his physical, emotional and educational needs;
3. the likely effect on him of any change in his circumstances;
4. his age, sex, background and any characteristics of his which the court considers relevant,
5. any harm which he has suffered or is at risk of suffering;
6. how capable each of his parents, and any other person in relation to whom the court considers the question relevant , is of meeting his needs; and
7. the range of powers available to the Court.

There is a presumption in favour of contact with the non-resident parent and there is no right or wrong answer as to the amount of contact that is afforded – it is what is appropriate in the circumstances and every case is different.

Procedure

Once an application is made to the court, it is likely that the court will arrange a conciliation appointment.  This will be attended by both parties and their solicitors and is chaired by a CAFCASS (Children and Family Court Advisory and Support Service) officer.  The purpose of the conciliation appointment is to assist both parents in reaching an agreement about residence and/or contact.  If the parents are able to reach agreement then the District Judge will record that agreement in a Consent Order.  The court will be guided by the principle that no Order will be made unless it considers it is absolutely necessary.

If the parents cannot reach an agreement at the conciliation appointment, the District Judge will decide what evidence he needs to make a decision and he will make directions.  These could include both parents writing statements setting out their views on residence and/or contact.  The court may also order a CAFCASS officer to prepare a report and make a recommendation about residence and/or contact.  The CAFCASS officer will see the court file, read the parents’ statements, meet both parents and the child individually and any other professionals involved with the child as necessary.

If an agreement cannot be reached after the CAFCASS report has been filed then the court will list a Final Hearing at which each parent and the CAFCASS officer may have to give evidence.  The District Judge will then make a decision about where your child should live and how much contact the child should have with the other parent.

Types of residence order

The court may make:

• A full residence order which states with which parent a child should live;

or

• A shared residence order which is an order made in favour of both parents who do not live together.  It will specify the period of time that the child will spend with each parent, this need not be an equal amount of time with each parent.

Effects of a residence order

If the court makes a residence order in favour of a father who does not already have parental responsibility (PR), the order will automatically give him PR.

If you have a residence order, you are not allowed to change you child’s surname or remove the child from the UK without either the written consent of the other parent with PR for your child, or permission from the court.  However, if you have a residence order you may take the child out of the UK for a period of up to one month without obtaining consent.

How long does a residence order last?

It will end:

• when the child reaches 16, unless the court considers that there are exceptional circumstances that require the order to continue until 18;
• if the court makes a new residence order in favour of someone else;
• if the court discharges the order;
• if the court makes a care order in favour of a local authority; or
• if the parents live together for a period of more than 6 months after the order is made.