Residence and Contact Orders – Who wins?

Residence and Contact Orders

When parents decide to end their relationship the issue of what happens to the children is often the paramount concern.

The terms “custody” and “access” are still frequently used by members of the public and the media. However these terms are rather archaic in the justice system, with lawyers and other professionals using “residence” and “contact” to refer to what relationship parents have with their children.

Where parents are in dispute as to what happens to the child(ren) mediators can facilitate a positive discussion between the parties helping them come to a sensible and realistic solution. Should mediation prove to be unsuccessful or unsuitable in the circumstances, then an applications forResidence or Contact Orders can be made to the court. A Residence Order dictates with whom a child is to live. A Contact Order requires the parent with control of the child to make the child available for contact with the Non Resident Parent (the NRP) at the times and dates set out in the order.

Where both parents have Parental Responsibility (PR) they are said to have equal control and responsibility in relation to the child. In practice the issue of equality of PR is merely a legal concept and bares little resemblance to reality. Where one parent has residence of the child and the NRP has overnight contact, be it ordered by the court of arranged informally, the resident parent has a greater degree ofactual control  as the primary care giver. Therefore where Residence and Contact Orders are made, the parent with a Residence order could be seen as the winner despite having equal PR. Such situations were once seen as best practice. In the 1986 case of Riley v Riley it was held that a settled home with one parent was in the best interests of a child.

To redress this imbalance courts may make Shared Residence Orders. Section 11(4) of The Children Act 1989 provides:

‘Where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned’

The use of a Shared Residence Order means that both parents have equal control in law and in practice. It is not necessarily a requirement that parents with SROs need to spend equal time with the child. The Children and Families Bill aims to enshrine into law the rebuttable legal presumption that parenting a child should be shared equally between parents. However when putting the finer points to an SRO a judge will have the best interests of the child at the forefront of his or her mind.

At Bhatia Best Solicitors we are able to assist parents who whish to obtain contact or residence orders in respect of their children. If you are a victim of domestic violence, or if there are child protection concerns, you may also qualify for Legal Aid.