HOW CAN YOUR BARRISTER HELP YOU AS A LITIGANT IN PERSON
INFORMATION ON A RESIDENCE ‘LIVE WITH’ ORDER IN CHILD ARRANGEMENT
RESPONSIBILITY OF A LITIGANT IN PERSON
Important note: Please note that this information is not intended to be legal advice. You are advised to seek legal advice.
This information is an overview on an application for with whom should the child should live with, where parties cannot agree, the court will need to decide on the issue including the different types of living arrangements and the different types of orders the family court can make.
In relationship breakdown where the parents cannot agree where the child ought to live and with which parent the child should live, a child arrangement application can be bought for the court to decide those issues.
Residence – A ‘Live with’ Order or Shared Care Order
Residence (previously known as Custody) is a term used to describe where the child will live for the majority of their time. When a relationship breaks down and parents do not live together, the child will usually live with either the mother or the father.
The parent who has the child live with them most of the time is called the resident parent and the other parent is called the non-resident parent.
When the child spends equal time with both parents, for example, one week with one parent, another week with the other, then the parents are said to have shared residence of the child.
How do we decide where the child shall live?
When a child is born the mother and the father (if married or named on the birth certificate registered after 1 December 2003) automatically have Parental responsibility. See our information page on ‘parental responsibility’ for further details. However, Parental Responsibility does not give an automatic right to have a child live with you.
Parents should try to decide together which parent the child will live with and how often the non-resident parent should have contact with the child. If parents can decide between themselves then there is no need to take the matter through the court to formalise arrangements.
Married v Unmarried Parents
Ideally parents will agree together where the child is to live. It may be that an unmarried father does not have Parental Responsibility; if this is the case it is advisable to obtain it.
Where parents have been married but then got divorced, they may have completed a Statement of Arrangements detailing residence and contact arrangements for the child. It is important to be aware that the Statement of Arrangements is not legally binding in the sense of being enforceable in court and parents can agree to vary the living arrangements. It is evidence of intention.
Whether the parents were/are married has no relevance to where a child should live. However it may have a bearing on whether the father has Parental Responsibility.
A Resident Parent
The resident parent makes the general day-to-day decisions concerning the upbringing of the child and this should be done with limited interference from the other parent.
These decisions will be decisions about how the household will function and the child’s daily routine. If the other parent has Parental Responsibility, the major decisions concerning the upbringing of the child should be made together. Such decisions can include, for example, where the child should attend school, what religion the child should be brought up with, the child’s name etc.
At what age can a child decide where they want to live?
It is up to individual parents to decide at what age they allow the child to make the decision about where they wish to live. Where parents are making the decision about where a child is to live they are able to choose whether the parent or the child makes the decision.
If the question of who the child is to live with has to be resolved through court proceedings, then the courts will take into consideration the child’s wishes when they are considered competent to understand the situation. This can be around the age of 12 or 13 but it varies on the circumstances. The wishes and feelings of a child below the age of 11 may be taken into account however it is for the court to determine the weight to be attached.
When a child reaches the age of 16, they are legally able to decide where they wish to live unless there is a residence order or child arrangement order specifying living arrangements which lasts until a young person is 18.
What happens if the non-resident parent does not return the child?
Where there is no court order in place stating who the child is to live with, the child does not normally belong with either parent. Therefore if a parent does not return a child after contact, no laws have been broken. The police may check the child is safe but they are unlikely to become involved with the situation, as it is a civil matter.
If it is not possible for parents to resolve the matter between themselves, they could consider using mediation to attempt to reach resolution. If the matter is still not resolved it will be necessary to seek resolution through the courts. A Child Arrangement Order can be applied for to ask whether the courts consider it to be in a child’s best interest for the child to be returned to a parent’s care.Your barrister would be an ideal person to advise on this.
If a parent has welfare concerns about a child, and a parent has not returned them, then it may be possible to apply for an emergency Child Arrangement Order. The court can order an interim Child Arrangement Order. This is where the child could be returned to the care of one parent, while a full hearing is on-going.Your barrister can help you with this.
Can the non-resident parent attend school meetings?
All biological carers are able to speak to their child’s school, receive information about the child and be a part of the education process. It is common practice that the school’s first point of contact will be the resident parent. Parents and carers are entitled to see the child’s school records.
Should the non-resident parent be helping to support the child financially?
The non-resident parent should be paying maintenance if eligible. This is regardless of whether or not the parent has Parental Responsibility or contact with the child. The fact that the parent is the biological parent is sufficient.
What if we cannot reach an agreement about where the child should live?
If parents cannot agree on where the child shall live there are three options:
You can consider family mediation to help them reach agreement.
You can ask your barrister to help reach an agreement.
If unsuccessful, you can apply to court for a Child Arrangement Order to determine where the child should reside.
The aim of mediation is to lessen conflict and to try to resolve disputes amicably. The process of mediation differs throughout the country, in some mediation services parents are seen separately and then they are brought together to see if they can reach a compromise.
In other mediation services the parents are seen together, sometimes with their representative present. It is a legal requirement to attempt mediation before an application for a court order can be made, unless a person falls within one of the exemptions.
What is a Child Arrangement Order?
A Child Arrangement Order is a court order stating the living and contact arrangements for the child or children. Child Arrangement Orders replaced Residence and Contact Orders, which were issued prior to 22/04/2014. A court can order shared residence under a Child Arrangement Order, to say that the child shall spend a period of their time with one parent and a period of their time with the other.
A Child Arrangements Order expires when the young person reaches the age of 18. However, you can only apply for a Child Arrangements Order for a child aged between 16-18 in exceptional circumstances.
If a Residence Order was granted (prior to 22/04/2014), or if there is a person named as having residence under a Child Arrangement Order, Parental Responsibility shall automatically be given to any person in whose favour the order is made. This Parental Responsibility will terminate when the order comes to an end.
Your barrister can provide legal advice and guidance with the preparation of your Child Arrangement Order.
Apply for Child Arrangement Order
The following can make an application to court for a Child Arrangement Order:
a step-parent who has treated the child as ‘a child of the family’;
any other person who has obtained the consent of all those with Parental Responsibility;
any person who, if the child is in care, has the consent of the Local Authority
any person who has obtained the permission of those who already have a Residence Order (granted prior to 22.04.2014) or a Child Arrangement Order for the child;
anyone who the child has lived with for at least 3 years within the past 5 years (and which has not ended more than 3 months before the application;
a foster parent, if the child has lived with them for at least 1 year immediately proceeding the application to court.
If you are not any of these people then you will have to obtain leave (permission) from the court.
If you are not any of these people, you will have to obtain leave (permission) from the court. If leave is required to apply for a Child Arrangement Order, the applicant will need to tick ‘Yes’ to the question ‘Are you asking for permission to make this application, where that is required?‘ on the C100 application form, and complete any other relevant sections relating to permission.
Matters the court needs to consider
The purpose of leave is to act as a filter, to protect the child and the family from applications that are not likely to succeed and are nothing more than an interference with the family. In deciding whether or not to grant leave, the court will consider:
the nature of the application
the applicant’s connection with the child
the risk that the application poses of disrupting the child’s life and causing harm.
The closer the connection of the person seeking leave, the more likely an application will succeed.
Grant of a Child Arrangement Order
A residence order (granted prior to 22/04/2014) or a Child Arrangement Order will automatically give Parental Responsibility to the person or persons who are named as having residence of the child.
Child Arrangement Orders naming grandparents as the people who have residence for a child are used as a way for them to obtain Parental Responsibility for their grandchild.
If a person is named as the resident parent in either a Residence Order (granted prior to 22/04/2014) or a Child Arrangement Order, that person can take the child abroad for up to 28 days without the consent from those who have Parental Responsibility for the child.
When does a Residence Order (issued prior to 22/04/2014) or a Child Arrangement Order expire?
Unless otherwise specified a Residence Order (granted prior to 22/04/2014) or Child Arrangement Order will terminate when the child reaches the age of 18.
Residence Orders made prior to the 1st September 2009 will usually cease to have effect after the child reaches age 16 years, unless the court specified that it should last until the child’s 18th birthday.
What happens when a child wants to live with the other parent and there is an order in place?
If there is a Residence Order or a Child Arrangement Order from the court and if all parties are agreeable to a change in residence, there is no need to apply to court to get it amended.
If the resident parent is not happy about the situation, the non-resident parent will need to take the matter back to court to request that the child’s residence be changed through a Child Arrangement Order.
If there is not a Residence Order or Child Arrangement Order in force and both parents are happy with the arrangement, there is no need to formalise the agreement by going through court. However, if the resident parent is not happy for the child to live with the other parent, it may be necessary to apply to the court for a Child Arrangement Order.Your barrister can help you with this.
Should I apply for an order if a birth parent has passed away and I am not the parent
If a birth parent has passed away and you wish for the child to live with you and you do not have Parental Responsibility, you will need to apply for a Child Arrangement Order in order to obtain Parental Responsibility for the child.
Chambers of Helen Alexander-Direct Public Access-Family Court Barrister