Information

Residence

This page explains the law on deciding where a child is to live including the different types of living arrangements and explaining the family court orders for residence.

Upon relationship breakdown parents can decide where and with whom a child should live

What is residence?

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.

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. Please see our How-to Guide on Parental Responsibility for more information.

Married parents

If parents are married but are in the process of divorcing, there is a provision in the divorce proceedings which discusses the arrangements for children called the Statement of Arrangements for children although it is not mandatory to submit this. 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 (see our information page on Parental Responsibility).

What does being the resident parent mean?

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 (see our information page on Parental Responsibility).

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 start to place weight on a child’s wishes when they are considered competent to understand the situation. This can be around the age of 12 or 13 but varies on the circumstances. The wishes and feelings of a child below the age of 11 may be taken into account but will not usually carry such weight.

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 arrangements 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 children are to live with, the children do 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 solicitors or 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 Arrangements 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. For more information see our How to Guide on Residence. 

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 Arrangements Order. The court can order an interim Child Arrangements Order. This is where the child could be returned to the care of one parent, while a full hearing is ongoing. For more information see our How to Guide on Residence

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 apart 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. This can be requested from the school under the Data Protection Act 1998, Freedom of Information Act 2000 and the Education (pupil information England Regulations Act 2000)

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. For more information we would suggest contacting Child Maintenance Options on 0800 988 0988. 

What happens if parents cannot decide where the child shall live?

If parents cannot agree on where the child shall live there are three options:

  1. They can consider family mediation to help them reach agreement.
  2. They can ask solicitors to help reach an agreement.
  3. If mediation is unsuccessful, they can apply to court for a Child Arrangements Order to determine where the child should reside.

What if we cannot reach an agreement about where the child should live?

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 bought together to see if they can reach a compromise. In other mediation services the parents are seen together, sometimes with their solicitor or a 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. Please see our information page on Family Mediation for more details.

For more information about family mediation, please contact National Family Mediation on 0300 636 4000. 

It is now a legal requirement to attempt mediation before a Child Arrangements Order can be applied for

What is a Child Arrangements Order?

A Child Arrangements Order is a court order stating the living and contact arrangements for the child or children. Child Arrangements Orders replaced Residence and Contact Orders, which were issued prior to 22/04/2014. A court can order shared residence under a Child Arrangements 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. Please note that the situation may be different if there is a Residence Order made before 1 September 2009 – if this is the case please contact our helpline for advice on when the order will expire.

If a Residence Order was granted (prior to 22/04/2014), or if there is a person named as having residence under a Child Arrangements 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, at the age of 18.

A Child Arrangements Order is a court order stating contact and residence arrangements for a child

Who can apply for a Child Arrangements Order?

The following people can make an application to court for a Child Arrangements Order:

  • a parent;
  • a guardian;
  • 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 Arrangements 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 on the form C2 (online) also available from your local family court

How will the court decide whether to give me permission?

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.

What are the effects of a Child Arrangements Order?

A residence order (granted prior to 22/04/2014) or a Child Arrangements Order will automatically give Parental Responsibility to the person or persons who are named as having residence of the child(ren). 

Child Arrangements Orders naming grandparents as the people who have residence for a child(ren) 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 Arrangements 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. 

Please see our How-to Guide on Residence for information about how you make the application. 

Generally, a Residence Order or Child Arrangements Order naming who a child lives with will expire when the child reaches 18 years of age, unless otherwise stated

When does a Residence Order (issued prior to 22/04/2014) or a Child Arrangements Order expire?

Unless otherwise specified a Residence Order (granted prior to 22/04/2014) or Child Arrangements Order will terminate when the child reaches the age of 18. Please note that the situation may be different if there is a Residence Order made before 1 September 2009 – if this is the case please contact our helpline for advice on when the order will expire.

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 Arrangements 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(ren)’s residence be changed through a Child Arrangements Order.

If there is not a Residence Order or Child Arrangements 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 Arrangements Order.

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 Arrangements Order in order to obtain Parental Responsibility for the child.

Can I get legal aid for residence disputes?

Legal aid can help with the costs of mediation if you meet the financial requirements. Legal aid can help with the costs of going to court where there is evidence of domestic abuse or child abuse. For more information on legal aid see our information pages on :

Would you like the child to live with you?Flowchart

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  • Have you discussed your dispute with the other party informally?
    • YES
    • NO
    • Try to talk to the other party
  • Have you written a letter to try to reach agreement?
    • YES
  • Have you attempted mediation with the other party
    • YES
    • NO
    • Contact National Family Mediation on 0300 4000 636
  • If there is still a dispute, apply to court for a Child Arrangements Order using Form C100

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Variation or discharge of a Child Arrangements Order or Residence OrderFlowchart

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  • A Child Arrangements Order or Residence Order is in place, but contact is unsuitable and needs to be changed or removed
  • Have you requested your changes to the other party?
    • YES
    • NO
    • Write a letter to try to reach agreement
  • Do they agree to the proposed changes?
    • YES
    • You may want to consider drawing up a written agreement of the agreed changes signed by all the parties with Parental Responsibility for the child/children.
    • NO
  • Have you attempted mediation with other parent?
    • YES
    • NO
    • Contact National Family Mediation on 0300 4000 636
  • Has mediation been successful?
    • YES
    • You may want to consider drawing up a written agreement of the agreed changes signed by all the parties with Parental Responsibility for the child/children.
    • NO
    • Apply for a Variation, or Discharge of Child Arrangements Order or Residence Order using Form C100

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Example case study (Residence – Consent Order) Case study

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  • Caller is the father to two children aged 4 and 5.

    There are no court orders in place.

    There is an informal arrangement in place for shared residence.

    The relationship between the caller and mother is fairly amicable now but there have been issues in the past where both the mother and the father have contravened the informal arrangement.

    The caller enquired whether they can have their informal arrangement be made legally binding just in case the relationship between the caller and mother deteriorates in the future.

    Advice

    Advised caller that there is the option of applying for a child arrangements order which can be made through consent.

    Ordinarily, parties apply to court and they are in dispute regarding contact and residence. In such a case, the court determines what the arrangements should be.

    However, with a consent order, the caller and mother can put forward their informal arrangement and this can be made legally binding by the court. This is a much quicker process because there is no dispute. However, it is worth noting that the court will verify that the arrangement put forward is in the best interests of the child.

    How to apply

    Ordinarily, there is a requirement to attempt mediation before applying to court for a child arrangements order. However, there is no such requirement when applying through consent.

    Advised the caller that they will need to have the arrangements written down and signed by both him and the mother. There is not necessarily any formal means of drafting this arrangement but it should be comprehensive and clear.

    The agreement will need to be attached to a C100 form. On page 3, under ‘Additional information required’ the caller should tick the box ‘YES’ for ‘’Are you applying for an order to formalise an agreement (consent order)?’’

    The completed C100 form, with agreement attached, can be submitted to the local family court. There is a £50 fee to make this application. The caller can submit an EX150 (fee exemption form) if on a low income. The C100 and EX160 forms can be obtained from www.justice.gov.uk or from the local family court.

    The court will convene a hearing that both the caller and mother will attend. The Judge will verify that this agreement has the consent of both parties and will verify that it is in the best interests of the child for a legally binding order to be made.

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Going further

More detailed information can be found in our How-to Guide. Please note that a fee is charged for this service.