Contact and Residence

Contact and Residence

When parents separate it can be difficult to agree which parent the children should live with and the level of contact the other parent should have. It is always better if parents can agree arrangements between themselves. Such arrangements are much more likely to be successful and work best for the children. If you do agree the arrangements for children following separation you do not need to see a solicitor and you do not need a court order. It is only if arrangements break down and stop working that you may need to seek legal advice or to make an application to court.

Residence Order

A Residence Order sets out the arrangements where a child lives.

Contact Order

A Contact Order sets out the arrangements for a child to visit a person who they do not live with. The courts always take the view that generally it is better for a child to grow up knowing both parents, unless there are very good reasons why contact should not take place.

Under Section 8 of the Children Act 1989, the Court has the power to make a Contact Order.

A Contact Order is an order that sets out the contact an absent parent has with their child.

There are many different types of contact.  Contact can relate to direct, i.e. face to face contact, or indirect contact.

A defined Contact Order will set out the times and dates when an absent parent can have contact with their child. This may include overnight stays. It can specify the arrangements for special occasions such as birthdays, Christmas and Easter and set out arrangements separately for term time and holidays.  A Contact Order could also specify the details of who is responsible for the collection and return of the child, where the handover takes place, whether the contact should take place at a specific venue, e.g. a contact centre, and whether the contact should be supervised by a third party or not.

The Court can also make Contact Orders with regard to indirect contact.  This may include telephone contact, Skype contact, email contact or letters, cards or gifts.

There are no set rules with regard to how long contact should be for. Each case is determined on its own facts. When determining what Contact Order should be made, the paramount consideration of the Court is always the welfare of the child.

The Court must have regard to the factors set out in Section 1(3) of the Children Act 1989 which are as follows:

  • His physical, emotional and educational needs;
  • The likely effect on him of any change in his circumstances;
  • His age, sex, background and any characteristics of his which the Court considers relevant;
  • Any harm which he 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 needs;
  • The range of powers available to the Court under this Act in the proceedings in question.

Other Orders Relating to Children Are:

Specific Issue Order

A Specific Issue Order can be applied for to ask the court to resolve matters concerning children where the parents cannot agree. For example;

  • Which school the child should attend.
  • Whether the child should receive medical treatment.
  • The religious upbringing of a child.
  • Whether a parent can take the child to live abroad.

However, it should be noted that if you want to take a child that lives with you abroad this is a very complex matter and there are a number of extra factors which the court must consider. If you take a child out of the country without the consent of the other parent or a court order it could be a criminal offence. If you are considering taking a child to live with you abroad it is important that you take early legal advice.

Prohibited Steps Order

A Prohibited Steps Order can be applied for to ask the court to prevent one parent taking a particular action. For example;

  • Preventing the child from receiving medical treatment.
  • Preventing the child from being permanently removed from the country.
  • Preventing the child from coming into contact with a person who it is considered may not be a good influence.
  • Preventing the child from being taken to a specific city, town or area. (You would need to have good reason to make this application).

Frequenly Asked Questions

Q. My girlfriend and I split up before my daughter was born. She is now aged one year. I have still not seen her. Do I have any right to see her?
A. The courts have the view that it is better for children to grow up knowing both parents if possible. Unless there are very good reasons why you should not have contact it is likely that the court will order you to have contact. Initially, such contact may be supervised. You will need to get to know your daughter before contact can be extended. You will also need to explain to the court why you have delayed in seeking contact.
Q. I am a father who has just separated from my partner. We were not married but I am named as father on the birth certificate and believe I have parental responsibility. I lost my job two years ago and I have been looking after the children for the past two years while my wife worked. I have heard that it is always the mothers who are given residence of children. Is this correct?
A. No. The court will take into account many factors when deciding which parent a child should live with following separation. It is what is in the children’s best interests. The courts do not always make an order that children should live with their mother.
Q. A Contact Order was made in my favour one year ago but my former wife refuses to comply with the order. What can I do?
A. You can make an application to enforce the court order. This can be a complex procedure and it is worth seeking legal advice.