Can a residence order be overturned?
- What is a residence order?
- What age does a residence order end?
- At what age can a child decide who to live with?
- Can a 10-year-old decide which parent to live with UK?
- Does a residence order expire?
- Can a residence order be overturned?
- Factors leading to a change of residence order when considering whether a residence order can be overturned?
- Can a residence order be overturned after being granted by the court?
- Can a residence order be overturned during child act proceedings?
- Can a residence order be overturned by consent of parents?
- Can a residence order be overturned if there is a change in circumstances?
- Can a residence order be overturned if provided to grandparent?
- What is the difference between a residence order and special guardianship?
Following a divorce or separation partners will often decide with which parent the child will live with. Quite often parents who remain on amicable terms may be able to reach a decision on where the child is to stay following a divorce or separation. If parents are unable to agree on child arrangements, they may consider making an application for a residence order.
What is a residence order?
A residence order is an order made by the family court. A resident order specifies which parent the child will live with and the contact arrangements the non-resident parent will have with the children. Once a residence order has been granted, parental responsibility for the child goes to the person with whom the child will be living with. Residence orders are governed by section 8 of The Children Act 1989. A residence order can be made in favour of any person and more than one person can obtain a residence order.
What age does a residence order end?
A residence order lasts until a child reaches the age of 16 years, A residence order may be extended in exceptional circumstances. An application can be made for a residence order to be extended until the child reaches the age of 18 years. This extension is only granted if the courts are convinced that the circumstances are exceptional.
At what age can a child decide who to live with?
Under the English Law a child can choose who to live with from the age of 16 unless there is an order in place. Parents can allow their child to make a decision who they want to live with following a separation. This is the choice as a parent. There is no set age that determines when a child is allowed to state who they want to live with.
If the matter is proceeding through a family court the courts will place weight to the child’s wishes. The child’s wishes can be taken into account when they are considered to be competent enough to understand the situation. This is usually when the child reaches the age of 12 or 13 years. By this age a child is deemed to have sufficient maturity to express their views. The courts must therefore find out what a child’s views are, but the child does not get to decide. However, each case depends on its individual circumstances based on the welfare of the child.
Can a 10-year-old decide which parent to live with UK?
A 10-year-old child may not be deemed to have sufficient competence to understand their family situation. Although a 10-year-old child may express their view on which parent they would like to live with, it is unlikely that the courts will place any weight to their wishes. Ultimately the wishes of a child is only one of several factors the court must assess when deciding on child residence. Age alone is not the deciding factor, Ultimately the courts will consider what arrangements are in the child’s best interest.
Does a residence order expire?
Residence orders are not permanent orders. A residence order can be made by a court for a specified turn. In any case a residence order expires either when:
- The child reaches the age of 16 unless special circumstances exist,
- The court makes a new order
- The court discharges the existing residence order or when
- The parents of the child live together for 6 months after the order is made.
Can a residence order be overturned?
A child residence order can be overturned by the family court. When considering an application to overturn a residence order the court will consider the welfare checklist under section 1 of the Children Act 1989. One of the most common reason for overturning a residence order is where a child expresses a wish to live with the other parent. When considering overturning a residence order the courts will consider where there has been a significant change relating to the welfare of the child. If no significant changes have taken place the court is unlikely to overturn the existing order.
If you would like advice and assistance on overturning a child residence order you can contact our family lawyers in York for a free consultation.
Factors leading to a change of residence order when considering whether a residence order can be overturned?
A residence order is usually overturned when there has been a significant change in circumstances since the previous order was made by the court. Often a child may reach an age where they are able to decide for themselves that they do not wish to remain with their resident-parent, or they do not want to have any contact with the non-resident parent. If this scenario applies, then the courts will have a considerable regard to the wishes and welfare of the child and may look to overturn one of its previous residence orders.
Other factors that may apply to warrant a change in a residence order is where one parent has become abusive, involved in drug or alcohol abuse or the child is at risk of harm. In such situations providing one parent can provide evidence to prove the change of circumstances and illustrate the risk of harm to a child then the courts may overturn their initial residence order.
Can a residence order be overturned after being granted by the court?
Parents can agree between themselves if they want to make any changes to an existing child residence order. If so there is no need to make an application to the family court.
In order for the court to overturn a residence order they will need to be satisfied that it is in the best interests of the child to make this change. Child welfare is the paramount concern in child proceedings. The courts want to cause as minimal disruption as possible to a child’s life.
Can a residence order be overturned during child act proceedings?
It is quite common for courts to issue temporary or interim residence orders during the course of child act proceedings. Such interim residence orders can be overturned and changed during the course of the proceedings as the courts will consider all the available evidence and evidence of the parents. The courts will then be able to reach a decision on who to grant permanent residency of the child having regard to the child’s welfare.
If you have been unsuccessful in securing an interim residence order or want to query one being granted you may want to consider prospects to challenging the order made.
Can a residence order be overturned by consent of parents?
As with most child law matters, parents can agree on child residence between themselves. If an existing residence order is in place, parents can by mutual consent overturn the order. IF parents do not remain amicable following their separation, assistance can be obtained from family mediators or legal advisors. At Kabir Family Law our specialists can attempt to mediate between conflicting parents to reach an agreement on a residence order being overturned by consent. If this is not practical, then parents will need to make an application to the family court to overturn a residence order in which situation the courts will consider the welfare of the child.
Can a residence order be overturned if there is a change in circumstances?
An exceptional change in circumstances could lead to a residence order being overturned by the court. Examples of this are when the parent who is granted a residence order falls ill. If the illness of the parent affects their ability to look after and care for a child then this can be seen as an exceptional circumstance. The courts may look to overturn a residence order on the basis that the child’s welfare may be affected.
Another example of a change of circumstance in which a residence order may be overturned is when the parent who the child lives with becomes involved in drug or alcohol abuse or becomes abusive. This could in turn affect the welfare and safety of a child which would warrant the need for the residence order to be overturned. If you are a parent concerned with the welfare of your child you can contact our specialists today to assess the prospects of a residence order being overturned.
Can a residence order be overturned if provided to grandparent?
Many grandparents who have child residence orders also query can a residence order be overturned if provided to grandparent? Again, this is similar to residence order granted to parents. If there is a change of circumstances then the residence order can be overturned, especially if the change of circumstances mean that a parent is applying for a residence given that they have more rights to their children than grandparents.
What is the difference between a residence order and special guardianship?
Both a residence order and a special guardianship order serve the purpose of providing who the child will be living with. A key difference between both orders is that a residence order will end once the child has reached the age of 16 unless special circumstances exist, whereas a special guardianship order ends when a child reaches the age of 18 years.
Another difference between a residence order and a special guardianship order is the length of time a child can be taken out of the UK without needing consent. In a residence order a child can only be taken out of the UK for 1 month otherwise consent of other with parental responsibility will be needed. On the other hand, someone with a special guardianship can take a child away for up to 3 months before they require consent. Interestingly a person who has special guardianship also acquires parental responsibility of the child which is greater than other people who hold parental responsibility of the child.
Contact Kabir Family Law for to arrange legal advice
If you require more information on residence orders and need assistance on how these can be overturned or require legal advice on any family law matter you can arrange a free no obligation consultation today with our child lawyers on 0330 094 5880 or let us call you back.