How Do I Apply for a Residency Order for My Child?
The decision to get a Residence Order for your child is a big one. The law concerning children can be quite complicated so it's best to get legal advice from a Family Solicitor before you make any decisions.
A Residence Order will determine where your child will live. First and foremost it can bring stability to your child's situation, something the Court will be looking to do when they are uncertain where your child should live.
The Court can also make a shared Residence Order, setting out how a child divides time between 2 households. The time spent does not have to be equal between both parents for a shared Residence Order to be made.
How to Get a Residence Order in England or Wales
You can apply to the Family Court to get a Residence Order. You can do this yourself, however you may want to attend Mediation before they hear your case.
The Court is often a last resort, whilst you do not have to attend Mediation, it will help your case greatly if you have tried to resolve the residence issue amicably by mediating.
You can ask our Family Solicitors to help you arrange for a referral to Mediation. We can help you put suggestions to your partner as to why you think your child should live with you.
Why Should I Go to Mediation?
If you have made an application to the Court for a Residence Order, they will require you to go to a family Mediation Information and Assessment Meeting (MIAM). You will be responsible for arranging the meeting and finding a mediator.
If you applied for the Residence Order you will need to determine with the mediator if Mediation is appropriate to your situation. There are certain situations where Mediation will not be appropriate including:
- If there is, or has been domestic violence in the past
- If you have a disability
- If English is not your first language
- If the other party is not willing to mediate.
If you believe there are reasons as to why Mediation is unsuitable for you, you should raise these with the mediator immediately.
What Will the Judge Consider in Court?
Whatever the Court decides in relation to the residence application, the decision should be based upon your child's best interests. The role of the Court is to take an impartial view and produce an outcome that will be most beneficial for your child.
The Court will take into consideration:
- The physical, emotional and educational needs of your child
- The effect of a change of circumstances on your child
- The capability of the parent in taking care of the child
This is not an exhaustive list and the Court will take a holistic view in making their decisions.
What Happens in Court?
The hearing for your Residence Order will happen in either the Family Proceedings Court or the County Court. The first hearing will be called a First Hearing Dispute Resolution Appointment (FHDRA).
Here you will discuss the nature of your dispute, the Residence Order and whether you could use Mediation or some other alternative as a tool to come to an agreement. This meeting can also be used as a conciliation appointment where you will talk with the CAFCASS officer.
Their role is to help negotiations along between you and the other parent and identify any safeguarding issues.
CAFCASS (Children and Family Court Advisory and Support Service) is there to promote and safeguard the welfare of your child.
If you, the other parent and the CAFCASS officer cannot come to an agreement the Judge will decide what evidence he/she needs to come to a decision. Often this evidence will include statements from both parents and a report done by the CAFCASS officer with a recommendation.
It is important that you cooperate with the CAFCASS officer, their evidence has a great influence on the Judge's decision.
Where Will My Child Live during the Process?
During the time the Court is making the decision about your child's residency you may be worried about where they will live. While the case is going ahead, the judge can make an interim Residence Order. These Orders decide who the child lives with until the final decision has been made, and may include another family member.
How Long Will the Residence Order Last?
Residence Orders are not permanent orders made by the Court. A Residence Order will usually only last until:
- Your child is 16
- Under exceptional circumstances, until your child is 18
- The Court makes a new Order
- The Court discharges the old Order
- The parents live together for 6 months after the Order is made.
Top Tips when Applying for a Residence Order
- The process of getting a Residence Order can be long and challenging, so find a Family Solicitor who has Law Society accreditation in Children Law to help you through the process
- If you have concerns about going to Mediation share them with your mediator, as you may not be suitable for Mediation
- Work with your CAFCASS officer and not against them, they want the same thing as you, the best outcome for your child.
At Simpson Millar, our Family Solicitors are members of the Law Society Family Law Panel and are accredited in the areas of Family Law, Family Law Advanced and Children Law.
This information was originally published on our website on 06/01/2014.
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