Residence Orders in Respect of Children

What is a Residence Order? 

  • 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?

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For more information on:

  • How is the order made?
  • Who can apply?
  • Discharge of residence orders?