Resolving disputes: residence orders
A residence order determines who a child should live with. It also gives parental responsibility to whoever is named in the order.
Shared residence orders
An order can be made in favour of one person or in favour of more than one person (a joint or shared residence order).
Historically, the courts were reluctant to award shared residence orders where the people named (in practice usually separated parents) did not live together, particularly if their relationship was acrimonious. However, in recent years the courts have awarded a greater number of shared residence orders where that is deemed to be in the best interests of the child.
Where an order is made in favour of two people who do not live together, the order can either specify the periods of time the child should spend in each home or can leave this to the adults concerned to decide themselves.
Residence orders and parental responsibility
A residence order automatically gives a person who does not otherwise have it parental responsibility for the duration of the order. That parental responsibility is shared with anyone else who already has parental responsibility for the child.
Where there are no other options for a person acquiring legal status in relation to a child, residence orders can therefore be very useful. For example, a residence order may be used to give the intended parents in a surrogacy situation a right to care for their child if the court cannot grant a parental order. Before 2004 (i.e. before civil partnership, adoption and parenthood reforms), residence orders were also commonly used to give lesbian non-birth mothers parental responsibility.
Who can apply?
Certain categories of people (including legal parents, guardians, spouses/civil partners who have treated the child as a child of the family, and people who have lived with the child for at least three years) are entitled to apply for a residence order.
Anyone who does not fall into these categories (for example a grandparent) needs the court’s permission to apply. In deciding whether to give permission, the court will, amongst other things, consider the applicants’ connection with the child and the risk of their application disrupting and causing harm to the child. It will also consider whether the applicant would have a good arguable case if he or she were allowed to apply for a residence order.
How long does a residence order last?
A residence order generally lasts only until a child is 16, although sometimes it can be made to last until a child is 18.
Residence orders can be made on an indefinite basis or may be restricted in time (for example as an interim order while other issues – perhaps an adoption or parental order application – are decided).
