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Family law guide
One Sunday evening a father opened his front door to find his 13-year-old daughter on the step with a holdall. She said she was not going back to her mother’s, yet a court order said she lived there. Our family law specialists advised him how to seek a transfer of residence quickly and openly, before a row over the order turned into an enforcement case. This is an anonymised account.
A daughter on the doorstep with a bag
A child arrangements order made when she was seven said she would live with her mother and stay with her father every other weekend.
Rows at home grew louder, and her mother’s new household felt crowded to her. She had asked for months to move. That Sunday she simply refused to leave.
He loved having her, yet he was frightened. A message from the mother that night said he was breaking a court order and would end up back in court. He did not know whether he had to drive his daughter home against her will.
What the law says about a transfer of residence
Residence orders no longer exist. Since 22 April 2014, the Children Act 1989 has used child arrangements orders instead. Under section 8(1) of the Children Act 1989, these orders regulate with whom a child is to live and spend time. So a transfer of residence today means varying that order to change who the child lives with.
A parent can apply without the court’s permission under section 10(4). GOV.UK confirms that form C100 can be used to vary an existing order. The child’s welfare is the court’s paramount consideration under section 1(1).
Where the other parent opposes the change, section 1(4) requires the court to have regard to the welfare checklist in section 1(3). That includes the child’s wishes and feelings, in the light of her age and understanding. It also includes the likely effect on her of any change in her circumstances.
Until a court changes it, the existing order still binds both parents. Under section 11J, the court can make an enforcement order if it is sure that a person failed to comply. It may not do so if that person had a reasonable excuse, and it is for them to show it. So his first few days mattered.
What we advised, and why
First, we advised him to act openly. That night he messaged the mother to say their daughter was safe and with him. He added that he would never stop her seeing her mother, and offered a meal together midweek. If the mother ever sought enforcement, that openness would count.
Next came timing. A child staying with one parent outside the order is a fragile position. Section 1(2) also treats delay as likely to harm a child’s welfare. For that reason, we advised him to apply within days. He applied to vary the order on form C100, with our guidance, and asked for an early hearing.
We then helped him prepare to ask the judge for two things. One was an interim order under section 11(3), so that her stay with him had the court’s approval while the case went on. The other was a section 7 report from a Cafcass officer, so that she could be heard.
We also advised him to keep a dated note of every message and every visit to her mother. His statement drew on that note. It stayed calm and factual, from the months of requests to the school run from his home, and set out a full plan for time with her mother.
How the court decided the transfer of residence
At the first hearing, the court made an interim order. She would live with her father for now and see her mother every week. The judge also asked Cafcass for a section 7 report.
By the time the report was due, the interim arrangement had run for some months, and she had seen her mother every week. The officer found that her reasons were her own. She wanted a calmer home and still wanted her mother. The officer recommended that she stay with her father.
With that record in front of her, the mother agreed. The court varied the order so that the girl lived with her father, with alternate weekends and half of each school holiday with her mother. Talk of enforcement was dropped.
Every case turns on its own evidence, so this is not a promise about any other family.
What you can take from this
If your child arrives wanting to stay, tell the other parent straight away. Do not hide where your child is or stop them seeing the other parent.
Then apply without delay. Even an interim order ends the argument about who is breaking what.
Above all, keep your child out of the dispute. Our guide to the lives with order and the spends time with order explains how the two work together. We also explain whether a residence order can be overturned and what age a child can choose which parent to live with. Or read how we prepare these success stories.
“When a teenager says she is moving in with you, keep her out of the adult argument. Do not coach her or promise what life with you will bring, so that if a Cafcass officer is asked to report, she can speak for herself. Keep her school, friends and time with her other parent as steady as you can, because where the move is disputed the court must weigh the likely effect of any change on her.”
Hannah Overton, Complex Children Specialist, Kabir Family Law
Talk it through with us
If your child has arrived and will not go back, speak to us that week. A free first consultation is confidential and carries no obligation. Our family law specialists will explain your options.
The legal issue
A child arrangements order made when she was seven said a girl lived with her mother and stayed with her father every other weekend. At 13, after months of asking to move, she arrived at her father's home with her bags and refused to go back. The mother said he was breaking a court order and threatened to take him back to court. He did not know whether he had to take his daughter home against her will.
The law this rests on
- Children Act 1989 s.1(1): the child's welfare is the court's paramount consideration.
- Children Act 1989 s.1(2): delay in deciding a question about a child's upbringing is likely to prejudice the child's welfare.
- Children Act 1989 s.1(3)(a) and (c): the welfare checklist includes the child's ascertainable wishes and feelings, considered in the light of age and understanding, and the likely effect of any change in circumstances.
- Children Act 1989 s.1(4)(a): the court must have regard to the checklist when it is considering whether to vary a section 8 order and the variation is opposed.
- Children Act 1989 s.7(1): the court may ask a Cafcass officer to report on the child's welfare.
- Children Act 1989 s.8(1) and (2): a child arrangements order regulates with whom a child is to live and spend time; an order varying it is a section 8 order.
- Children Act 1989 s.10(4)(a): a parent is entitled to apply for a section 8 order without the court's permission.
- Children Act 1989 s.11(3): the court may make a section 8 order during proceedings, before it can dispose of them finally.
- Children Act 1989 s.11J(2) to (4): the court may make an enforcement order if satisfied beyond reasonable doubt of a failure to comply, but not if the person had a reasonable excuse, which that person must prove on the balance of probabilities.
- Children and Families Act 2014 s.12: residence and contact orders were replaced by child arrangements orders from 22 April 2014.
- GOV.UK, form C100: the form can be used to apply to vary or discharge an order.
How we approached it
We advised the father to tell the mother at once that their daughter was safe with him, and to support time with her mother. Because delay harms a child's welfare and an arrangement outside the order is fragile, we advised him to apply within days to vary the order. He applied on form C100 with our guidance. We helped him prepare to ask for an interim order under section 11(3) and a section 7 report from Cafcass, so his daughter could be heard without coming to court. We helped him write a calm, factual statement with a full plan for time with her mother, and advised him to keep a dated note of every message and every visit to her mother, so he could show he had acted openly if enforcement were raised.
The outcome
At the first hearing the court made an interim order for the girl to live with her father and see her mother every week, and asked Cafcass for a section 7 report. By the time the report was due, the interim arrangement had run for some months and she had seen her mother every week. The officer found her reasons were her own and recommended that she stay with her father. The mother then agreed, and the court varied the child arrangements order so that she lived with her father and spent alternate weekends and half of each school holiday with her mother. Talk of enforcement was dropped. Every case turns on its own evidence, and this is not a promise about any other family.
What to take from this
- Residence orders were replaced by child arrangements orders in 2014. A transfer of residence now means varying who the child lives with.
- If your child arrives wanting to stay, tell the other parent straight away and do not stop them seeing each other.
- The existing order binds you until a court changes it, so apply quickly on form C100.
- Ask for an interim order so the new arrangement has the court's approval while the case goes on.
- Keep a dated note of what you told the other parent and when. If enforcement is raised, you may need to show a reasonable excuse.
- The court weighs a child's wishes and feelings in the light of age and understanding, alongside the rest of the welfare checklist.
Checked and approved for publication by Iblal Iqbal.
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