Following separation parents may find it difficult to decide who a child is going to live with. In the event that an agreement cannot be reached amicably either by way of direct agreement between themselves or with the assistance of mediation then the Court can make a Residence Order.
A Residence Order will determine where the child will live. In many cases the Court will also make a defined Contact Order setting out the time that the child will spend with the parent who they do not live with.
If upon separation the child is going to reside with both parents then a shared residence/parenting arrangement may be put into place. This does not necessarily mean that the child will spend exactly equal amounts of time with each parent but the arrangement will ensure that neither parent has more control over the other. In these cases the Court may order that the child is to spend alternate weeks with each parent or, for example, term time with one parent and holidays with another.
What factors will the Court take into consideration?
Before making any orders the Court will take into account a number of factors contained within a welfare checklist. The purpose of this checklist is to ensure that a consistent approach is taken in all cases concerning a child. The following is therefore taken into consideration:
- The ascertainable wishes and feelings of the child;
- Their physical, emotional and educational needs;
- The likely effect on the child of any change in circumstances;
- Their age, sex, background and any other characteristics of the child which the Court considers relevant;
- Any harm that the child has suffered or is at risk of suffering;
- How capable each of the child's parents and other person in relation to whom the Court considers the question relevant is of meeting the child's needs;
- The range of powers available to the Court under this Act in the proceedings in question.
In deciding whether or not to make an order the Court will also consider what is known as the 'No order' principle:
Section 1 (5) of the Children Act 1989 states:
"Where a Court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better than making no order at all".
In all cases where an application is made the Court will not automatically make and order and will consider whether there is a real benefit to the child an order were to be made.