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Residency Order

(17 Posts)
rubin Fri 05-Nov-10 16:44:21

Hi,

I'm about to attend court to agree on a Contact Order with my children's father.
I am also going to apply for a Residency Order.
Does anyone have any experience in whether it is likely to be awarded to me?
My children re twin boys (nearly 2 yrs) and have only ever lived with me. Their father has never lived with us and to date has never had them for overnights.

Thanks

prh47bridge Fri 05-Nov-10 17:01:24

The courts operate on a "no order" basis, which means that they only make an order if it is necessary. If the order requested merely confirms the current situation and there is no dispute the courts generally won't make the order.

You already have the children living with you so you aren't asking for a change of situation. If the father isn't disputing residence it is unlikely that the courts will give you a residence order.

Why do you want one?

rubin Fri 05-Nov-10 17:06:26

I'm asking for one because their father is forever changing his mind about contact issues & can be really manipulative.
For example, if he's not happy with something he will quite easily refuse permission for me to take them abroad on holidays, etc. The residency order would give me that freedom for short holidays.
I also don't trust him in the future as he will try to manipulate the children to go and live with him when they are older.

yerblurt Fri 05-Nov-10 18:00:01

That doesn't sound like sufficient grounds under the Children Act for a sole residence order. How is this in the child's best interests?

There is no dispute about where the children live so the No Order principle should really apply.

There can be a contact order made, however, to define when the children have contact with their father.

You can also have schedules for holidays, christmas etc in the contact order.

rubin Fri 05-Nov-10 18:16:29

Well, it is in the childrens interest to remain in one home for their young live, without manipulation from their father.
So I will continue with the application on that ground.
Will let you know how I get on.

Thanks

nightshade Fri 05-Nov-10 18:42:30

the situation in england may be different to here in n ireland but in my experience, if a contact order is being granted then it is logical for the magistrate to also grant a residence order.

the no order principle is redundant as there is obviously dispute over contact for which an order is being applied for.

if a contact order is granted to the father, it immediately negates joint residence?? therefore to tie up these loose ends residence should be granted in your favour.

cestlavielife Sat 06-Nov-10 15:26:05

i applied for a residency order (but on grounds of exP's instabiility DV and MH issue) which ended up as a residency and contact order. am not sure if you need to apply for both or if the residency can be included in tehecontact order along the lines "the children are to live with the mother at ....

contact to be on xxx days... ask solicitor if you need ot pply for both (as separate applications) or if can be done once you at court?

etc.

STIDW Sun 07-Nov-10 12:05:11

These days the outcome of a good proportion of residence applications is shared residence. Shared residence doesn't have to be 50:50 in can be in different proportions but some judges award shared residence to underline the importance of both parents. Other judges think having just one home is in the best interests of children.

Residence orders may be ordered to regulate parents' manipulation and unreasonable behaviour. Shared residence is often awarded to equalise the power and control between parents. There is no reason why sole residence shouldn't be awarded when there is evidence that one parent is being very unreasonable and regulating the behaviour is necessary for the welfare of the children.

Just to clarify, s1 Child Abduction Act 1984 states it is a criminal offence for someone without a residence order in their favour to take a child abroad without the consent of all those with parental responsibility or permission from the courts. It then goes on to say it isn't an offence if it was believed those with PR had consented or consent was unreasonably withheld. Withholding consent for one or two weeks abroad once or twice a year is unreasonable.

Writing a formal letter (or a solicitor writing a letter on your behalf) stating the intentions to go abroad, providing details of travel and accommodation arrangements, requesting consent and offering alternative arrangements for any contact missed during the holiday can resolve the problem. If the person doesn't reply it wouldn't be unreasonable (sorry too many negatives, but you get the gist) to believe the person had consented and if consent is refused it is generally seen as unreasonable. So strictly speaking there is often no need to involve the courts although having an order might prevent any hassle clearing up the issue at the last moment should the other side try to involve the authorities.

Having said that there is no need to obtain a residence order just to resolve difficulties with holidays. Conditions can be attached to a contact order or an application made for a specific issues order to obtain permission from the court to go abroad on an annual family holiday.

shelleylou Sun 07-Nov-10 12:27:17

I've got a query from reading the responses. As ex p has no contact with ds at all it sounds like it is pointless applying for a residence order as they wont grant one. I want the security of knowing ds is to live with me and his dad cant suddenly decide to take him as he doesn't like something at home i.e me getting married. Its more of a formality really as he hasn't seen ds for 2 years through his own choice. He also wouldn't give permission for holidays abroad I'm certain of this and want to take ds away next year. Is it worth me trying to get one anyway?

prh47bridge Sun 07-Nov-10 13:24:37

Shelleylou - The "no order" principle will apply, I'm afraid, so it is very unlikely you will get an order. Given that he hasn't seen your son for 2 years, your ex is not in a position to take him away from you.

shelleylou Sun 07-Nov-10 14:25:46

Thanks I thought it might do. If im honest I'm worried about any member of that family taking DS.

STIDW Sun 07-Nov-10 15:02:12

shelleylou, the family would be very silly to try. Do not underestimate the importance courts attach to the established status quo.

A piece of paper makes little difference, what does is the reality of the amount of time children spend with each parent. Unless there is a very exceptional reason (evidence that children are suffering significant harm or at risk of significant harm) those who decide unilaterally to disrupt a child's sense of security and established bonds are not seen as putting the child's interests first.

In the very worst case scenario whether or not there is a residence order you can make an emergency court application the same day on the basis that the status quo has been disrupted and it is in the child's best interest for it to be restored immediately . If there is no residence order the courts can order interim residence in your favour there and then. Although it is rarely needed, once there is a residence order a judge may order the "recovery" of the child so that the police/social services can then become involved to have children returned.

shelleylou Sun 07-Nov-10 15:39:57

Thanks for that information puts my mind at ease a bit. It sounds awful but i wouldn't put it past any of them once they find out im married. Controll tactics really.

babybarrister Sun 07-Nov-10 19:09:17

Message withdrawn at poster's request.

booyhoo Sun 07-Nov-10 19:18:41

babybarrister, my son is subject of contact oredr but there is no residence order. one does not automatically necessitate the other.

yerblurt Sun 07-Nov-10 19:42:03

babybarrister - this was recently addressed and comes from a misunderstanding by LJ Thorpe

http://www.familylaw.co.uk/articles/HayleyTrim1509 10

HAYLEY TRIM'S ANALYSIS: IT’S ONLY WORDS…

15 SEPTEMBER 2010

This week I found myself going round in circles on what seemed to be a very simple issue - can the court make a contact order without making a residence order? And I have concluded that I respectfully disagree with Lord Justice Thorpe.

The case in question is Re S (A Child) [2010] EWCA Civ 705 in which the mother sought a sole residence order and the father (acting in person) a shared residence order. The parents having failed to agree arrangements for their daughter, the judge's out-moded indication was that a shared residence order was inappropriate given the distance between their homes (probably no more than 100 miles). He made an order, as drafted by the mother's counsel, providing that the father would ‘have care of the child' for certain periods. The intention no doubt was to avoid using ‘residence' and ‘contact' which, as many mediators will tell you, can be unhelpful labels when trying to promote constructive co-parenting. Far better to describe arrangements for how a child's time will be spent when the parent who has ‘contact' feels of secondary importance to the one who has ‘residence.'

However as the father's counsel correctly pointed out on appeal, the court's powers under section 8 are to make residence (including shared residence) and contact orders. The court does not have jurisdiction to make orders about who has ‘care' of the child. Where the court is imposing an order on the parties in the absence of a consensus, it must find its jurisdictional foundation within the statutory language of contact and residence.

If for example parties reach agreement for a child to ‘spend time with' a parent, then the court (although it does not have jurisdiction to make an order in those terms) will generally endorse it by way of recital or by scheduling it to an order. There may be an order for the dismissal of the application upon the terms of the agreed and approved schedule. One difficulty practitioners may encounter when submitting an agreement which carefully avoids statutory labels is that the court often attaches the terms to a standard form order headed ‘Contact Order' or ‘Residence Order' which can cause upset. Practitioners must also take care to consider and advise whether the agreed arrangements will be enforceable as a contact order under s11J etc Children Act 1989.

Thorpe LJ referred to Ward LJ's statement in Re B(a Child) [2001] EWCA Civ 1968 that one cannot have a contact order without having first determined the person with whom a child lives, because the contact order requires that person to allow the child to visit or stay with the other parent. That makes perfect sense - someone has to be subject to the order and the order must be enforceable against someone. However Thorpe LJ went much further, going on to say that, ‘necessarily the contact order cannot be made unless it can be attached to a residence order providing there for the child to live with a person'.

I cannot agree with that. It does not sit with the no order principle and there will be circumstances in which a residence order is undesirable since for example it confers the right to take the child abroad for 28 days without the other parent's consent. Citing Re B, both the Family Court Practice 2010 (the Red Book) and Hershman and McFarlane's Children Law and Practice both assert that it is not necessary for there to be a residence order for a contact order to be made (the 2006 edition of the Red Book expressed a contrary view, but this has since been amended). The argument of successful Counsel for the father in Re S, Duncan Brooks, was that the court must first decide with whom a child will live before making a contact order, not that a residence order must be made. That is also my view.

Thorpe LJ's comments are, I would suggest, obiter, the ratio of Re S being that the court cannot impose an order which is not phrased in statutory language. Determination of the important issue of whether a contact order can be made without a residence order should follow considered and detailed argument directed to that matter. Thorpe LJ's comments open the door for that argument to take place.

I am grateful to Madeleine Reardon (co-update editor of Children Law and Practice) for her lucid thoughts on this matter which have assisted in refining my own, and also to Duncan Brooks for his helpful perspective on Re S.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

babybarrister Mon 08-Nov-10 12:26:50

Message withdrawn at poster's request.

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