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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.

What is residence?

Residence (previously known as custody) refers to where the child will spend the majority of their time. 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.

What does being the resident parent mean?

The resident parent makes the majority of day-to-day decisions regarding the child’s upbringing, and this should be done with limited 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 must decide when to allow their children to make decisions about where they want to live. When it comes to deciding where a child will live, parents can choose whether the decision is made by the parent or the child.

If the question of who the child will live with must be resolved in court, the courts will begin to give weight to a child’s wishes when they are deemed competent to understand the situation. This can range between the ages of 12 and 13, depending on the circumstances. The wishes and feelings of a child below the age of 11 may be considered, but they usually do not carry as much 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, the children usually do not belong to either parent. As a result, 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?

A child arrangements order is a court order that specifies the child’s or children’s living and contact arrangements. Child arrangements orders replaced residence and contact orders, which were issued prior to April 22nd 2014. A court can order shared residence under a child arrangements order, meaning that the child shall spend a period of their time with one parent and a period of their time with the other.

When a child reaches the age of 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 prior to April 22nd 2014, or if a person is named as having residence under a child arrangements order, parental responsibility will be automatically granted to the person in whose favour the order is made. This parental responsibility will end when the order expires.

We do have a how to guide available on residence which explains the application process. 

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.

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 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:

Would you like the child to live with you?Flowchart

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
 
 
NO

Write a letter to try to reach agreement

See our template

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

Variation or discharge of a Child Arrangements Order or Residence OrderFlowchart

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

This information is correct at the time of writing, 18th October 2023. The law in this area is subject to change.

Coram Children’s Legal Centre cannot be held responsible if changes to the law outdate this publication. Individuals may print or photocopy information in CCLC publications for their personal use.

Professionals, organisations and institutions must obtain permission from the CCLC to print or photocopy our publications in full or in part.

On this page

This information is correct at the time of writing, 18th October 2023. The law in this area is subject to change.

Coram Children’s Legal Centre cannot be held responsible if changes to the law outdate this publication. Individuals may print or photocopy information in CCLC publications for their personal use.

Professionals, organisations and institutions must obtain permission from the CCLC to print or photocopy our publications in full or in part.

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