Application for a Residence or Contact Order
A residence or contact order can only be made in respect of a child who is habitually resident in England and Wales, or is physically in the country.
Either party to the marriage may apply for a residence or contact order in respect of a child of the family.
The application can be made to the High Court, a county court or a family proceedings court, for a fee of £50.
The applicant must include with the application enough copies for each respondent.
Normally there is only one respondent, the other party to the marriage, but it is possible for a wider range of people to be involved,
for example natural parents if one or both of the parties to the marriage are not the child's natural parents.
From the moment the application is filed (arrives at the court), the court is under a duty to ensure that delay is minimised,
in the interests of the child, and when the court receives the application the court has to fix a date, time and place,
either for a directions appointment or for the hearing itself.
The applicant must serve a copy of the application on each respondent at least 14 days before the hearing,
together with notice of the application on a particular form (Form C6A), endorsed with the date fixed for the hearing.
If there is an emergency, it is possible to make a special application, known as a 'without notice' application,
but it is unusual for the court to make a residence or contact order without giving the other party the chance to explain their position,
and any order which is made because of an emergency will last only until the other party has been given the opportunity to argue their case before the court.
At or before the first directions appointment or hearing, the applicant must file a statement with the court to prove that all the documents
have been properly served on the respondent.
The respondent must file acknowledgement of the application (using Form C7), and serve the acknowledgement on all the parties
within 14 days of service of the application.
In the High Court and the county court, but not the family proceedings court, the respondent may file a written answer and serve it on the other parties,
provided this is done not less than 2 days before the hearing.
The first directions hearing in contact and residence applications is normally a conciliation application.
This short appointment is an opportunity for both parents to be guided by the judge and family court reporter
(formally Court Welfare Officer) in discussions with a view to reaching agreement about the arrangements for the children.
No order can be made unless an agreement is reached by the parents.
If conciliation fails, the judge will give directions for the future conduct of the application.
Either party may request that the court give directions, or the court may decide for itself that directions are needed,
for example that a timetable for the proceedings is needed.
Except in urgent cases, a request for directions by either party will be in writing, filed and served on the other parties, or,
if by agreement, in writing and signed by the parties or their representatives.
If the court is considering giving a direction without having received a request to do so then the court will give the parties notice,
to give them the opportunity to put their point of view to the court.
Once a direction has been given for the filing of evidence (and not before), the parties must file and serve a written statement of the oral evidence which they intend to offer the court,
and copies of any documents which they intend to rely upon. Unless they have filed and served a properly signed and dated statement of evidence, the party will have to obtain the court's permission before he or she will be allowed to present evidence of any kind at the hearing. Neither party can have the child examined by a doctor or a psychiatrist for the purpose of an expert's report without the court's permission. Normally, a family court reporter will be asked to prepare a report on the matters in issue. The reporter will see both parents and the children before completing the report.
If the case is being heard in the High Court, the applicant should provide a written estimate of how long the hearing is likely to take, signed by any legal representatives. This estimate must be served on the other parties, who can then provide their own estimate if they disagree.
The parties should both attend the hearing of the application (as well as any directions hearing which may take place). If a respondent fails to turn up for the hearing, the court may proceed without him or her, provided there is proof that he or she was given reasonable notice of the date of the hearing, or where the circumstances of the case justify proceeding. If the applicant fails to turn up, the court may refuse the application, or, if there is enough evidence to do so, proceed without him or her. If neither party appears, the court may refuse the application.
The court will normally consider that it is not in the child's best interests to attend the hearing. One exception to this is that children of 8 and above, and younger siblings if they are considered to be old enough to understand, have to attend conciliation appointments to talk to the family court reporter.
If the case is being heard in the High Court or the county court, proceedings are almost always heard in chambers, that is, in private, and the family proceedings court may hear the application in private if it considers that it is in the best interests of the child to do so.
When considering an application for a residence or contact order, the court must treat the child's best interests as the paramount consideration. That means that the court is not deciding what is in the best interests of either parent, but what is in the best interests of the child involved. In making its decision the court must consider the following:
a) what the child's wishes and feelings are, bearing in mind that the court will often consider that younger children do not have sufficient understanding of the situation to express a genuine opinion;
b) what the needs of the child are;
c) what effect a change of circumstances is likely to have on the child;
d) the child's age, sex, background and other relevant factors;
e) any harm which the child might suffer or be at risk of suffering;
f) how capable each of the parents is of meeting the child's needs - the court must consider every aspect of care, including the potential clash many parents face between the needs of the child and work, and other, commitments.
The court almost never imposes a shared residence order on parents who cannot agree that residence should be ordered to both of them, living in different homes. If the parties can agree to shared residence the court will approve such an arrangement (and this is a common arrangement where the parties do agree). In the absence of agreement the court will usually have to make a very finely balanced decision, choosing between two people who would both be capable of looking after the child. It will often happen that a parent who would be good at caring for the child will not be granted a residence order, because the court considers the child's interests to be marginally better served by residence with the other parent. The court will be assisted in making its decision by the welfare report and sometimes by oral evidence from the family court reporter, who will have canvassed the views of the children and seen them with each parent.
The amount of contact ordered will depend on the circumstances of the case, but in the normal case the court will try to be as generous as possible, bearing in mind that the child needs stability and a sense of home, and, as the child gets older, enough time to develop his or her own social life.
It is normal for a non-resident parent to have regular weekly or fortnightly visits, including the right to take the children out somewhere, and to have regular staying contact. The more flexible the parents can be in relation to holidays the better for the children, and the court will try to avoid setting down rigid rules, but there will also usually be some provision for special contact time over the main holiday periods
This order settles with whom the child is to live. In some ways this is similar to the old custody orders which no longer exist.
But there are important differences too, and the courts have made a number of decisions which influence how these cases will be looked at in the future.
Here are some Frequently Asked Questions about Residence
Is the mother always in a stronger position?
What happens if there is more than one children - are they kept together?
How long does a Residence Order last?
At what age can a child make his or her own mind up?
Is the mother always in a stronger position?
The application of the Welfare Checklist points towards pragmatism:
Who is best able to meet the child's day to day needs?
What has the domestic routine been in the child's life to date?
Even if there is little to choose between the two parents in terms of their actual parenting skills, are the work commitments of one more conducive to having primary care of the children? This last consideration is often fundamental and traditionally, has often worked in favour of mothers, but increasingly, need not necessarily be the case.
Even where one parent does have a Residence Order in his or her favour, that does not alter the fact that the other parent retains parental responsibility and has an important role to play in the child's life. In theory at least, a Residence Order is not a passport to make important decisions about the child's upbringing on a unilateral basis.
In the case of unmarried parents, the mother has sole parental responsibility until the father acquires it by way of an agreement, or Court Order. He will however be granted parental responsibility automatically if he has a Residence Order in his favour.
What happens if there is more than one child - are they kept together?
It is important to look at each child as an individual and to apply the Welfare Checklist in respect of each of them.
It will however normally be in their best interests to keep siblings together if that is what has happened thus far in their lives.
How long does a Residence Order last?
Until the child is 16 years old unless there are very exceptional circumstances which justify the order extending beyond the child's 16th birthday.
At what age can a child make his or her own mind up?
In the vast majority of cases, a Residence Order, and most other orders available under the Children Act, will expire when the child reaches the age of 16.
The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding) are one part of the criteria which the Court is specifically asked to address under the Welfare Checklist.
There is no set age from which any significant weight is attached to a child's views; they are taken into account in the light of his age and understanding.
In practical terms, this will usually mean that a Court Welfare Officer will spend time with the child and then report back to the parents and the Court on how clearly the childs views were expressed and the basis upon which they are formed.
The Court Welfare Officer will also raise any concerns there may be about a childs views being expressed under the unreasonable influence of one or other of the parents.
How divorce affects children from 9-11Do give as much reassurance to your child as possible
Give repeated advice about what is happening in ways they can understand
Be receptive to their enquiries and perceptions
Encourage the child in pursuing a relationship with the other parent
Reassure the child that you as parents can manage your own affairs: that they need not be responsible for helping you
Do encourage your child to talk about his or her feelings, particularly about the other parent, in a way that encourages them and overcomes an sense of divided loyalties
This is the age at which children often become intensely angry with their parents' divorce. They may blame the parents or even reject one of them, most commonly the parent with whom they live. Boys are more likely to become aggressive whilst girls are more likely to become withdrawn. School performances are often affected as well.
How parents can help
As well as the advice from the previous sections, it is important that parents accept that their children will be angry.
This acceptance will help to disperse the child's feeling of impotence over an event they do not want to happen.
Tolerating anger which may seem arbitrary and unconnected is the most helpful way of managing these feelings.
These feelings are often expressed in the place children feel most safe and to the safest person.
How divorce affects adolescents
Adolescents also get angry and feel pain at the loss of a family they have known.
Because they feel more adult, they may assume adult-like responsibilities and concerns. For example, they may express worries about the future of the family or the well being of younger siblings.
The danger of a child assuming such adult-like burdens is that his or her own feelings of sadness and concern are glossed over; they feel unsupported and even emotionally abandoned.
This can lead to anger, particularly in boys, and withdrawal, especially in girls.
Older adolescents also tend to take refuge in sexual relationships, with research showing that the children of divorced parents tend to marry younger (and so are more likely to divorce themselves).
Adolescents do have a greater ability to communicate their feelings and this can mean a stronger bond with the parents during this stressful time.
Sometimes, an adolescent can develop a better individual relationship with a parent once the atmosphere of tension or conflict is reduced.
School performance often diminishes and can lead to dropping out early from the educational path.
How parents can help
Although it easy to be persuaded by a child's apparent ability to help and understand, adolescents still need parents to parent them.
These children are the ones most obviously caught in the middle, because they become the confidante of one or both parents and feel forced
either to take sides or to engage in a constant test of loyalty.
Teenagers need to be free of this difficult position.
It is important for them to have their say, but children even of this age cannot be expected to exercise adult judgement over the long-term effects
of choosing their social lives over seeing their other parent, for example.
Parents need to take a long-range view for them, and ensure that they maintain that relationship with the other parent (unless violence or abuse indicates otherwise).
Parents - Do's and Don'ts
Don't be critical of the other parent
Don't do anything that would undermine the child's relationship with the other parent
Don't "lean on" older children or ask them for advice
Don't ignore children's feelings or questions
Don't assume that children who are quiet or placid on the outside are not suffering - they still need reassurance and tolerance
Above all else, DON'T involve the children in your own battles
Grandparents - Do's and Don'ts
All too often, wider members of the family are affected by a divorce. Their feelings of sadness and loss are often overlooked. So far as grandchildren are concerned, here is a list of things to bear in mind - how to help them as much as possible:
Don't criticise your son-in-law or daughter-in-law to the grandchildren
Make your time available to help look after the grandchildren, because this is the time when your own child's energies and patience are fully stretched; helping in basic child care or other domestic chores can help especially in the early days
Be careful about giving advice, unless this is specifically asked for; your perception of events, however valid, will be different to your own child's
Allow other people to help as well, and provide a breathing space
It may be easier for the grandchildren to talk to you in confidence; it is important to respect that confidence
If these sections about the children have been helpful, please let us know.
If you think we have missed anything, then we will be happy to hear from you with suggestions.