A child arrangements order can be about where a child should live. Until 2014 this used to be called a residence order. In cases where parents separate and there is a dispute about where children should live, the court decides this according to the child’s welfare, while the main consideration is usually who has been the main carer for the child. In practice, in our experience where a mother and a father have separated, there is probably an assumption (rightly or wrongly) that the mother has been the main carer, and if this has not been the case, the father has the burden to prove this.
Where there is a child arrangements order in force about with whom a child should live, that person can take the child outside England and Wales for up to a month at a time without needing the permission of any other persons who have parental responsibility or the court. Of course this makes holiday trips abroad easier. Therefore a child arrangements order about where a child should live may be appropriate in a case where one parent unreasonably withholds consent to normal holiday trips abroad or tends to wait until the last minute when travel has become expensive.
Anther reason to get a child arrangements order about where a child should live is to give parental responsibility to a social parent who would otherwise not have it, for example:
- jointly for a parent and their partner who is not married to or in a civil partnership with that parent (this used to be called a joint residence order),
- shared between a parent and their former partner with whom the child spends a lot of time (which used to be called a shared residence order), or
- in an arrangement where a lesbian couple co-parent with a man who is the biological but not the child’s legal father of a child.
Living with Separated Parents (formerly shared residence orders)
More and more parents see shared care as the best solution. The introduction of child arrangements orders should promote voluntary arrangements between parents to agree that a child lives with both of them and the times it lives with each parent.
A child arrangements order providing that a child lives with both separated parents does not mean that the child will live one week with one parent and the next week with the other parent, or 3½ days each week with each parent. The time the child spends with each parent can still vary, for example, in a 14-day cycle with 5 of 14 nights with the father and the remaining with the mother, or of course the other way round. This will very much depend on the circumstances including work patterns and location of the parents’ homes and the child’s school. Nevertheless, unequal time can determine maintenance payments through the Child Maintenance Service.
For more information and practical examples see the page about shared care.
It is always best to try to avoid court proceedings of course because the judge can only make an order. An order does not enforce itself and if someone does not comply with the order or takes a “work-to-rule” approach, matters can continue to be difficult. There will also be issues arising in the future of a child’s life where parents have to work together.
It is of course always best to try to avoid court proceedings because the judge can only make an order, but cannot physically oversee the time a child spends with each parent. An order does not enforce itself and if someone does not comply with the order or takes a “work-to-rule” approach, matters can continue to be difficult. There will also be issues arising in the future of a child’s life where parents have to work together.
Mediation is an inexpensive way to find solutions outside the court system and it is particularly suitable to resolve issues about children. This is why it is compulsory for anyone who wants to make an application to the court for a child arrangements order to attend a Mediation Information and Assessment Meeting (MIAM) first (with some exceptions). Our support page has a wealth of resources for parents to help them to parent together successfully, nurturing their child.
For advice on your specific circumstances please contact a solicitor
10 February 2015 by Andrea Woelke