How-to Guide: Residence

This guide aims to assist parents and carers in understanding the legal aspects of establishing a child’s living arrangements, as well as the steps necessary to secure these arrangements through a court order.

Living arrangements for children

When parents separate, it is their responsibility to determine where the child will live and with whom. If they can reach an agreement on the child’s living arrangements, there is no need to apply for a court order.

If there is a dispute between the parents about where the child is to live, then the first step is to attempt mediation, to try and reach an amicable resolution. 

If mediation is unsuccessful or the other party refuses to attend, then you can apply for a child arrangements order to resolve the issue. 

What is a Child Arrangements Order and when is it needed?

Before April 22nd 2014, the courts could issue a residence order under section 8 of the Children Act 1989, which specified the arrangements for where the child would live. The Children and Families Act 2014 changed this process, consolidating residence and contact issues under a single order called a child arrangements order. The child arrangements order may include:

• who a child will live with ("live with" order);
• who they will spend time with ("spend time with" order), and
• other types of contact, including when these arrangements will occur.

The court can also issue a shared "live with" order. This indicates that the child "lives" with each person named in the order, rather than primarily with one parent while having contact with the other. The order does not require an equal division of time.

Applying to the court for a Child Arrangements Order should be considered only after all informal options for reaching an agreement have been fully exhausted. 

A child arrangements order may be necessary if there is no one with parental responsibility for the child, such as in cases where both parents have passed away. It may also be necessary when those with parental responsibility are unable to care for the child, and a family member who has taken on that role wishes to secure their position as the person with whom the child lives with. 

Who can apply for a Child Arrangements Order?

While there are no restrictions on who can apply for a child arrangements order, the application process may vary based on the applicant‘s relationship to the child.

The following people can make an application to court for a child arrangements order: 

• Any parent, guardian or special guardian of the child
• Any party to a marriage/civil partnership (whether or not subsisting) in relation to whom the child is a child of the family, e.g. a step-parent
• A person with whom the child has lived with for a period of at least 3 years within the past 5 years (and which has not ended more than 3 months before the application).
• Any person who, in the case where there is a Residence Order (granted prior to 22/4/2014) or a Child Arrangements Order in force, has the consent of each of the persons in whose favour the order was made
• Any person who, in any case where the child is in the care of the Local Authority, has the consent of that authority
• Any person who, in any other case, has the consent of all those who have Parental Responsibility for the child
• A relative of the child who the child has lived with for at least one year immediately preceding the application
• A local authority foster carer who the child has lived with for at least one year immediately preceding the application

If the person intending to apply for the order does not fit into one of these categories, they must first seek leave (permission) from the court before applying for a child arrangements order. If permission is needed, the individual should select ‘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.

How will the court decide to grant permission?

The purpose of seeking permission is to serve as a safeguard, protecting the child and family from applications that are unlikely to succeed and that may interfere with family life. When considering an application for permission, the court will take the following factors into account:

• The nature of the proposed application;
• The applicant’s connection with the child;
• Any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and
• Where the child is being looked after by the Local Authority:
  • The authority’s plans for the child’s future, and
  • The wishes and feelings of the child’s parents.

How do I apply for a Child Arrangements Order?

It is a legal requirement to attempt mediation before applying for a section 8 order, including a child arrangements order. You can locate local mediators using the ‘find your local mediator‘ tool on the Family Mediation Council website.

If mediation is unsuccessful, the applicant has four months to submit the application to the court. If this four-month period has passed, the applicant will need to attempt mediation again.

There are several exemptions to mediation that allow an individual to apply directly to the court if one of these applies to their situation. The exemptions are listed on the C100 form and can also be found in the Family Procedure Rules.

The following court forms are required to make an application for a child arrangements order:

• C100: Application for a child arrangements order. This has a £263 application fee.
• CB1: Guidance document to assist in filling out the application form.
• EX160: Fee exemption form.
• EX160A: Guidance document to assist in filling out the fee exemption form.
• C1A: Supplementary form where the applicant can expand on welfare and safeguarding concerns.
• Form C8: This form should only be submitted if the applicant does not want the respondent to know their contact details. If you use this form, please ensure that your contact information is not included on any other forms or documents submitted to the court, as these may be accessible to the respondent.

For a paper application, the applicant must submit three copies of the C100 and C1A forms (if applicable), along with one copy of the EX160 and C8 forms (if applicable), to the court nearest to where the child lives. The application can be mailed or delivered in person. Applications can also be made online.

Court Proceedings

Once the court has received the completed application, it will be processed and assigned a case number. We advise you to note this number, as you will need it for future reference. For C100 applications, the court typically provides the respondent with a copy of the application, so the applicant is not required to serve the paperwork themselves. If the applicant needs to serve the paperwork for any reason, the court will inform them. Serving the paperwork must be done at least 14 days before the court hearing date. Service on the respondent can be done via:

• Recorded/Special delivery to their address, or
• Handing the documentation to them personally

If the applicant has served the paperwork, they must return a Statement of Service to the court, detailing the date and time of service, the method used (for example, post or personal service), and the forms that were sent to the respondent.

The respondent, once in receipt of this documentation, will need to complete an Acknowledgement of Service (C7 form) and return this back to the Court. This form will also detail whether they wish to oppose the application that has been made. If the Respondent has any welfare concerns they can complete a C1A form and return this with the C7 form. 

The initial hearing will be where the court will consider what is in dispute and will make directions about how the case will be dealt with. It is important to keep a note of the directions made and any timescales. If the court makes an order, this will be legally binding. These are usually known as interim orders.

During the court proceedings, the court will consider the welfare checklist. This is a list of factors that the court considers when making any decision and includes:

1. the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
2. the child’s physical, emotional and educational needs
3. the likely effect of any change in the child’s circumstances
4. the child’s age, sex, background and any characteristics which the court considers relevant
5. any harm which the child has suffered or is at risk of suffering
6. how capable each parent, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs
7. the range of powers available to the court.

These factors will also be considered by the Children and Family Court Advisory and Support Service (CAFCASS). If requested by the Judge, CAFCASS will undertake a report on the family circumstances and ascertain the child’s wishes and feelings (if appropriate). The report is then given to the Judge to assist them with their decision-making process.

The child’s wishes and feelings 

When determining whether to consider the child’s wishes and feelings, the judge will assess if the child is Gillick competent. Gillick competency is a legal principle used to evaluate whether a child has the maturity and understanding to comprehend the proceedings and provide their views. The judge will assign weight to the child’s wishes and feelings based on their individual circumstances. While there is no specific age at which a child is deemed competent, they are typically considered to be so from the age of 11+.

CAFCASS 

One of the directions the court may issue at the first hearing is for the involvement of the Children and Family Court Advisory Support Service (CAFCASS). CAFCASS can be asked to prepare a report on what it considers to be in the child’s best interests.

CAFCASS is often regarded as the eyes and ears of the judge. They can speak to the children involved to understand their wishes and feelings and will also meet with the applicant and respondent. CAFCASS will then prepare a report outlining what it believes is in the child’s best interests. The court will take this report into account, along with the welfare checklist and evidence presented by both the applicant and respondent, when making its decision.

If you are dissatisfied with CAFCASS’s involvement, you should express your concerns to the officer and request another meeting. Some officers may agree, while others may not, but they should consider any additional feedback. If a party still feels unhappy after the meeting, they or their solicitor can discuss the issue with the officer and contact the CAFCASS Area Complaints Manager.

What happens if a Child Arrangements Order is granted or rejected?

The court operates on a "no order principle," meaning it will not make an order unless absolutely necessary. A judge will grant a child arrangements order only if they believe it is in the child’s best interests.

The person with whom the child lives under the child arrangements order will obtain parental responsibility for the child for as long as the order is in effect, provided they did not have parental responsibility before the order was granted.

Unless the order states otherwise, the person with whom the child lives under a child arrangements order can take the child abroad for up to 28 days without needing consent from others with parental responsibility. 

If either party disagrees with the judge’s decision, they may be able to appeal. However, the appeal must be based on a point of law or a procedural error, rather than just dissatisfaction with the outcome. There is typically a strict 21-day time limit for submitting an appeal application. If you wish to appeal a decision, it may be necessary to seek permission, so it’s advisable to bring this up at the final hearing when the decision is made.

Steps to take to apply for a “lives with order” – Flowchart

* See Court Procedure Flow Chart

Step by step court procedure – Flowchart