December and January are traditionally busy times of the year for Family solicitors, as it is the time of year when many people consider whether they are going to separate.
New Year, new start is a common resolution.
It is also the time when the stresses and strains of parenting for those who have previously separated really start to show. We see conflict because parents can’t agree who will get to spend special time with the children over Christmas and also frustration because they can’t seem to resolve this issue between themselves.
When parents can’t agree on arrangements either through sorting it out themselves, mediation or solicitors then they will need to approach the court for an order dealing with residence and contact with the children.
What is a residence order?
A residence order establishes where a child will live and a contact order sets out who the children should spend time with. Residence orders are now referred to as child arrangement orders in Court, but many people still refer to them as residence orders and contact orders.
Before applying for a residence order
To be able to make an application for residence order or contact order, you will have to show the court that you have attended a meeting known as a MIAM (mediation information and assessment meeting) and shown that mediation isn’t right for your matter. In certain circumstances, you don’t need to attend a MIAM before making a residence order application (where there has been domestic abuse or the Local Authority are involved with your family).
It may be that you and your ex agree on some matters and not on others. It may be that you fundamentally disagree on everything, from residence to where the children will attend school or even which country they will live in moving forward. In these circumstances, you will need to apply for a court order to regulate the arrangements for the children through a residence order.
Making an application for a residence order
One parent makes a residence order application to the court and pays a fee – currently £215 although certain people may be exempt from paying some or all of this fee.
Both parties will then take part separately in a telephone call with CAFCASS to discuss matters relevant to the residence order application including residence and contact issues and any concerns they have about the children, the other parent or third parties.
Agreeing a residence order
Approximately four weeks after the residence order application is made, there will be a first hearing.
If there are no significant safeguarding or welfare issues and if the parties can reach agreement (you usually have about an hour prior to the hearing to try and agree a residence order by consent) then a final order can be made and will usually state where the children live (the residence order) and how often they spend time with the non-resident parent (the contact order).
The child arrangement order may also provide for other specific issues or prohibited steps such as one parent being ordered to ensure that a child attends a regular sporting activity or that a parent shall not move the child from their current school or change their surname.
What if a residence order can’t be agreed?
If matters for the residence order can’t be resolved at the first hearing because of safety concerns, lack of relevant information or the parties simply cannot agree then the matter will move onto a second hearing.
Parents will sometimes have to prepare a statement outlining why they think the residence of their children needs to be decided by the court with a residence order.
The court may also want further evidence from schools, doctors, CAFCASS or Social Services to ensure they have everything needed to make a residence order.
Read our blog: "CAFCASS - who they are and what to expect" here.
If the Court can’t make a residence order at this hearing, then a final hearing may be listed where the court listens to the parties and then makes a decision about anything the residence order which is binding on both parents.
Sometimes when parents make allegations against each other there can be a separate set of hearings outside of the main residence order application called “finding of fact” but these are relatively rare and only ordered where there is a real need for them.
Reaching an agreement without a residence order
We often find when parents approach us for initial advice or seeking residence orders or contact orders that the underlying problem is communication.
There are relatively few parents I see who really don’t want their ex to see the children or play an active role in the big decisions and activities in their lives. Where that is genuinely the case or where parents really do fundamentally disagree on what is in the best interests of the children then the security and framework of a residence order or contact order can be just the thing to help them move on with their co-parenting journey.
If you are having problems dealing with your ex about residence or contact issues and would like to discuss a residence order, then please call Amy Fallows on 01228 552222 for initial advice.