Residence in English family law
Encyclopedia
Residence is a term used to refer to not always similar concepts in various parts of English law
including taxation, immigration, and family law. The remainder of this article deals exclusively with English family law. See residence in English law
for disambiguation.
In family law
, the Court can order a Residence Order of the Family Court
under section 8 of The Children Act 1989
following the breakdown of a marriage
and determining where the child
ren are to live and with whom. The order can be sole or joint
, and if joint, it can be made to a couple regardless whether they are married. If a residence order is granted, this automatically gives him, her, or them parental responsibility
for the child(ren) which will continue until the order terminates (usually this will be until the child(ren) reach their sixteenth birthday unless there are exceptional circumstances justifying a longer period).
as of right:
If an applicant cannot apply for the Order as of right, (e.g. they are wider family members such as grandparents etc. who wish to seek orders for their grandchildren), they can make an application to the court seeking leave to issue the application. In deciding whether to grant leave, the court will consider, amongst other things:
, the courts have always operated under the doctrine of parens patriae
to make the best interests
of any children their first and paramount concern. From time to time, this doctrine has been included in statute
s, the most recent relevant version being section 1 of The Children Act 1989
which requires the court to consider the "welfare checklist". Before making a sction 8 order (i.e. a residence order) the court must consider:
A child is not automatically a party to the proceedings and will be represented by a Guardian ad litem unless the court considers it necessary. If a Guardian is appointed but the children and the Guardian do not agree on what recommendations to make to the court and the children are of sufficient age and understanding, they will be able to instruct a solicitor directly to represent their views and the Guardian will present an independent view to the court. Whether or not a Guardian is appointed, the court can request a Welfare Report under section 7 of The Children Act 1989
, either from the local authority where the child currently resides or from a Children and Family Reporter who is an officer appointed by CAFCASS. The report will usually inform the court of the child's wishes and feelings, but the officer will recommend what he or she thinks is in the child's best interests in the circumstances of the case rather than just advocate the child's wishes.
for more than one month without the agreement of everyone with parental responsibility or an order of the court. Where the child is to live may also be a relevant factor in the practicality of making Contact Orders
. The Order also prevents anyone changing any child's surname without a specific order of the court. It is felt that continuity of naming is usually in the child's best interests unless there is some very specific reason for concealing the child's existing name.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
including taxation, immigration, and family law. The remainder of this article deals exclusively with English family law. See residence in English law
Residence in English law
Residence in English law can refer to*Family law*Immigration law*Taxation law:See also*Residence in English family law....
for disambiguation.
In family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
, the Court can order a Residence Order of the Family Court
Family court
A family court is a court convened to decide matters and make orders in relation to family law, such as custody of children. In common-law jurisdictions "family courts" are statutory creations primarily dealing with equitable matters devolved from a court of inherent jurisdiction, such as a...
under section 8 of The Children Act 1989
Children Act 1989
The Children Act 1989 is a British Act of Parliament that altered the law in regard to children. In particular, it introduced the notion of parental responsibility. Later laws amended certain parts of the Children Act...
following the breakdown of a marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
and determining where the child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
ren are to live and with whom. The order can be sole or joint
Shared residency in English law
Shared residence, or joint residence, refers to the situation where the child of parents who have divorced or separated reside with each parent at different times, and each parent has equal status in law. In English family law s8 Children Act 1989 defines a residence order as one "...settling the...
, and if joint, it can be made to a couple regardless whether they are married. If a residence order is granted, this automatically gives him, her, or them parental responsibility
Parental responsibility (access and custody)
In the nations of the European Union and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child and either of the child's parents or those adults who have a significant role in the child's life...
for the child(ren) which will continue until the order terminates (usually this will be until the child(ren) reach their sixteenth birthday unless there are exceptional circumstances justifying a longer period).
Who can apply?
The following can make an application for a Residence Order under section 8 of The Children Act 1989Children Act 1989
The Children Act 1989 is a British Act of Parliament that altered the law in regard to children. In particular, it introduced the notion of parental responsibility. Later laws amended certain parts of the Children Act...
as of right:
- the parentParentA parent is a caretaker of the offspring in their own species. In humans, a parent is of a child . Children can have one or more parents, but they must have two biological parents. Biological parents consist of the male who sired the child and the female who gave birth to the child...
or guardian of the child(ren); - a married stepparent of the child(ren) where the child(ren) lived with the stepparent as child(ren) of the familyFamilyIn human context, a family is a group of people affiliated by consanguinity, affinity, or co-residence. In most societies it is the principal institution for the socialization of children...
; - anyone with whom the child has lived for at least three years (this period need not have been continuous but must have been recent).
- anyone who:
- a) where there is already a Residence Order in place has the consent of every one who holds that Order, or
- b) who has the consent of the local authority where the chid is in their care, or
- c) has the consent of every one who has parental responsibility for the child.
If an applicant cannot apply for the Order as of right, (e.g. they are wider family members such as grandparents etc. who wish to seek orders for their grandchildren), they can make an application to the court seeking leave to issue the application. In deciding whether to grant leave, the court will consider, amongst other things:
- the nature of the application,
- the applicant's connection with the child, and
- the risk that the proposed application might disrupt the child(ren)'s life to such an extent that they should be harmed by it.
The welfare principle
As a matter of public policyPublic policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
, the courts have always operated under the doctrine of parens patriae
Parens patriae
Parens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...
to make the best interests
Best interests
Best interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well-being of children. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents...
of any children their first and paramount concern. From time to time, this doctrine has been included in statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s, the most recent relevant version being section 1 of The Children Act 1989
Children Act 1989
The Children Act 1989 is a British Act of Parliament that altered the law in regard to children. In particular, it introduced the notion of parental responsibility. Later laws amended certain parts of the Children Act...
which requires the court to consider the "welfare checklist". Before making a sction 8 order (i.e. a residence order) the court must consider:
- The ascertainable wishes and feelings of each child concerned (considered in light of his or her age and understanding);
- His or her physical, emotional and/or educational needs;
- The likely effect on him or her of any change in the circumstances;
- His or her age, sex, background and any other characteristics which the court considers relevant;
- Any harm which he or she has suffered or is at risk of suffering;
- How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his or her needs;
- The range of powers available to the court under the Children Act 1989 in the proceedings in question.
A child is not automatically a party to the proceedings and will be represented by a Guardian ad litem unless the court considers it necessary. If a Guardian is appointed but the children and the Guardian do not agree on what recommendations to make to the court and the children are of sufficient age and understanding, they will be able to instruct a solicitor directly to represent their views and the Guardian will present an independent view to the court. Whether or not a Guardian is appointed, the court can request a Welfare Report under section 7 of The Children Act 1989
Children Act 1989
The Children Act 1989 is a British Act of Parliament that altered the law in regard to children. In particular, it introduced the notion of parental responsibility. Later laws amended certain parts of the Children Act...
, either from the local authority where the child currently resides or from a Children and Family Reporter who is an officer appointed by CAFCASS. The report will usually inform the court of the child's wishes and feelings, but the officer will recommend what he or she thinks is in the child's best interests in the circumstances of the case rather than just advocate the child's wishes.
Discussion
A Residence Order has a number of consequences of varying degrees of significance. In practical terms, it determines where any children will live which will affect the arrangements for schooling, health care, etc. This restricts the right of the party holder the Order to remove any child from the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
for more than one month without the agreement of everyone with parental responsibility or an order of the court. Where the child is to live may also be a relevant factor in the practicality of making Contact Orders
Contact (law)
In family law, contact is one of the general terms which denotes the level of contact a parent or other significant person in a child's life can have with that child...
. The Order also prevents anyone changing any child's surname without a specific order of the court. It is felt that continuity of naming is usually in the child's best interests unless there is some very specific reason for concealing the child's existing name.