General Principles

  • Didn’t it used to be called ‘custody’ and ‘access’? What are residence orders and contact orders?
  • Can we have a shared residence order?
  • What factors do the solicitors/Judge apply in dealing with our case?

The Children Act 1989 is the main piece of legislation dealing with family disputes about children.  In family law, what used to be called “custody” and “access” is now known as “residence” and “contact”.

A Residence Order is an order which determines where and with whom a child should live.  The order is for ‘settling the arrangements… as to the person with whom the child is to live’.  An order made in your favour will mean that your child will continue to live with you.  It will also provide that person with parental responsibility (if they do not already have this) and this means that the parent in whose favour the residence order has been granted, can make decisions about a child’s care and upbringing on a day-to-day basis.

In certain circumstances, a Residence Order can be shared between two parents, in which case the order will specify the times that the child will spend in each household.

It follows that a Residence Order can be granted to more than one person. It can also be made jointly to an unmarried couple.  It lasts until the child is 16 unless the circumstances of the case are exceptional and the court has ordered that it should continue for longer.

A Residence Order also prevents anyone from changing a child’s surname without the agreement of everyone with parental responsibility or an order of the court.  It also places restrictions on taking children out of the UK, in that no-one with a Residence order may take the child abroad for more than one month unless everyone else with parental responsibility agrees in writing or the court gives permission.

When dealing with any application in relation to a child, the court must bear in mind that any delay is likely to prejudice the child’s welfare. Also, the Judge must not make an order unless it considers that making the order is better than making no order at all.

The Children Act states that the child’s welfare is the paramount consideration when the court considers any request in relation to the upbringing of the child, including an application for a Residence Order. The court will apply what is known as the “welfare check list” in the said Act to help it make its decision.  The welfare check list looks at:-

  • the wishes and feelings of the child (considered in light of his/her age and understanding).
  • his/her physical, emotional and educational needs.
  • the likely effects on him/her of  any change in his/her circumstances.
  • his/her age, sex, background and any characteristics which the court considers relevant.
  • any harm he/she has suffered or is at risk of suffering.
  • how capable each parent is of meeting his/her needs.

An Application to Court for a Residence Order

  • OK, we have tried everything (negotiation and mediation) but nothing can resolve this impasse about where our teenage son should live.  How can we sort out custody?
  • What is this CAFCASS organisation?  Why are we required to meet with someone other than the judge on the day of our hearing?
  • I understand that a report is being done on our child.  I do not like the idea of this.  We do not want to be involved with Social Services at all.
  • What have my daughter’s teachers got to do with my application?
  • If we go to a final hearing, will our son have to give evidence and be cross-examined?
  • Is the law equal now for same sex couples in relation to children?
  • The process is begun by an application on a standard form called a Form C100.  If harm is alleged then a further form called a Form C100 (A) is required by the court.
    The court will list the application for a 30 minute conciliation appointment either a few days before or alternatively on the day of the first court appointment.  The aim is to encourage the parties to reach an agreement by consent that they both consider is workable.  Together the parents will meet with an officer of the Children and Family Court Advisory Support Service (a CAFCASS officer) who will be present to do his/her best to assist the parties to agree matters or reduce the issues between them.  A great many cases settle at this point in the proceedings.  If there are serious welfare concerns as alleged in Form C100 (A), then the matter proceeds to the first court appointment without the said conciliation appointment. 

    At the first court appointment, the Judge will generally direct that a CAFCASS report should be prepared over the following 14 weeks.  The CAFCASS officer will meet both parents; speak to the children’s teachers and any other relevant individual.  It is also likely that they will meet the children concerned either to observe them with their parents or to discuss matters with them. These conversations are at an age appropriate level for the child/children concerned and entirely depend upon the individual circumstances of the case.  Occasionally, the Judge may ask the parties to file statements setting out their concerns and what they are seeking to achieve by way of these proceedings.

    The CAFCASS report will be available to both parties prior to the second court appointment and will be considered by the Judge. It frequently assists the parties in resolving their issues without a contested hearing. The reason for this is that although the report is not binding upon the Judge, it will carry great weight with the Court and hence the Judge is likely to adopt the recommendation that it makes in the absence of any strong evidence to the contrary. It follows that if the report contains a clear recommendation, then many cases result in an agreement at this stage.

    If a final hearing is required, then both parties will be required to attend to give evidence on oath and be cross-examined.  The CAFCASS officer is also generally present to give evidence but the child does not attend court (as the CAFCASS Officer reports on their wishes and feelings).  In unusual cases, where it is appropriate, the Judge may order that the child be separately represented in which case the child’s Guardian will also give evidence on the child’s behalf.  The Guardian will be an independent person appointed by the court.

    An order is made at the final hearing unless the matter is settled by negotiation in advance.  Occasionally it may be useful for matters to be reviewed say at 3 or 6 monthly intervals.

    Court orders in relation to children are not set in stone and either party may make a further application if there is a change of circumstances and the existing order needs to be varied.

The Adoption and Children Act 2002 came into force on 30 December 2005.  It entitles same sex couples to apply for residence and contact orders.  It also entitles them to apply jointly to adopt a child. 


John Turner, the Principal of Blackdown Family Law Solicitors, is a highly skilled solicitor who has dealt with all aspects of children advice and applications to court regularly over the last 22 years. He will advise you on the most effective and efficient way of proceeding, whilst taking all of the circumstances of your case into account, most notably what is in the best interests of the children. Through extensive experience he will work with you in order to achieve the best outcome to resolve any conflict.

Areas of Family Law Work
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