Residence

This page explains the law on deciding where a child is to live including the different types of living arrangements and applying to court to formalise arrangements. 

Living arrangements

When a relationship ends and the parents no longer live together, the child usually lives with either the mother or the father. The parent who has the child with them the majority of the time is referred to as the resident parent, while the other parent is referred to as the non-resident parent. When a child spends equal time with both parents, such as one week with one and another with the other, the parents are said to have shared residence with the child.

How do we decide where the child shall live?

When parents separate, there is no law that dictates which parent a child should live with. It is up to the parents to make this decision. Flexible arrangements can be made to meet the individual needs of the child and family. If an agreement cannot be reached, the dispute can be settled by applying to court for a child arrangements order.

Please refer to this template letter, which may assist in resolving a dispute and reaching an agreement.

Decision-making

The person with whom the child lives should be able to make most day-to-day decisions about the child's upbringing, with minimal interference from the other parent. These are decisions about how the household will run and the child's daily routine. If the other parent has parental responsibility, major decisions concerning the child's upbringing should be made jointly. Such decisions may include where the child will attend school, what religion the child will be raised with, and changing the child's name.

At what age can a child decide where they want to live?

Individual parents can determine when to allow their children to make decisions about where they want to live. Parents can choose whether the decision is made by the parent or the child. If the issue of where a child will live must be settled in court, the courts will start to consider the child's wishes once they are deemed competent to understand the situation. This typically occurs from the age of 11+. While the wishes and feelings of a child under 11 may be considered, they usually carry less weight..

When a child reaches the age of 16, he or she has the legal right to choose where they want to live, unless there is a Residence Order or Child Arrangements Order in place that specifies the child's living arrangements.

What happens if the non-resident parent does not return the child?

When there is no court order stating who the children are to live with,  if a parent fails to return a child after contact, no laws are broken. The police may check to see if the child is safe, but they are unlikely to become involved because it is a civil matter. If parents are unable to resolve the issue between themselves, they may consider using solicitors or mediation to try to reach an agreement. If the issue remains unresolved, it may be necessary to seek resolution through the courts.

If a parent has welfare concerns about a child and has not returned them, then it may be possible to apply for a Child Arrangements Order on an urgent basis.

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:

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 live.

What is a Child Arrangements Order?

Before April 22nd 2014, the courts would issue residence orders and contact orders under section 8 of the Children Act 1989. 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.

When a child turns 18, the child arrangements order expires. Only in exceptional circumstances can you apply for a child arrangements order for a child aged 16 to 18.

If a residence order was issued before April 22nd 2014, or if a person is named as the person with whom the child lives with under a child arrangements order, parental responsibility will be automatically granted to that person. 

What happens when a child wants to live with the other parent and there is an order in place?

If the court has issued a Residence Order or a Child Arrangements Order, and all parties agree to a change in residence, there is no need to apply to the court to have it amended. There is, however, the option of formalising the change by requesting a variation. See our How To Guide on variation and discharge.

If the resident parent is dissatisfied with the situation, the non-resident parent must return to court to request that the child's residence be changed through a Child Arrangements Order.

There is no need to go to court if there is no Residence Order or Child Arrangements Order in place and both parents are happy with the arrangement. However, if the resident parent is unwilling for the child to live with the other parent, a Child Arrangements Order may be required.

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:

• Legal aid for family law matters
• Legal aid if you have been a victim of domestic abuse.
• Legal aid if your child is at risk of abuse.