When a relationship breaks down, parents or certain individuals involved will need to reach an agreement regarding the arrangements for the children. When disagreements arise, which is common between parents, applications can be made to court under section 8 of the Children Act 1989 for residence or contact orders in respect of a child.
A residence order determines who the child will live with. If someone is granted a residence order, they will automatically acquire parental responsibility for the child, unless they already have it, as is the case for mothers and fathers who acquire it automatically if they are married to the mother at the time of the child’s birth (and if they are not, the father can obtain it through court order or agreement with the mother).
If parental responsibility is acquired as a result of a residence order, then this will only continue for the duration of the order. In any event, a residence order will cease when the child turns 16, except in exceptional circumstances.
As a result of a residence order, the child who is the subject of the order cannot be removed from the UK for more than one month or have their surname changed by anyone without a court order or the agreement of everyone with parental responsibility.
A contact order requires the person with whom a child lives to allow a named individual to have contact with the child. Contact can be ‘direct’, which means that it will be face-to-face; ‘indirect’, which may involve telephone calls, emails or letter; supervised by a third party; or the child may be able to stay overnight with the named person in the order.
Some contact orders will allow the parties involved to make their own detailed arrangements for contact, whilst some will be very specific as to the arrangements. Like residence orders, contact orders will cease when the child turns 16, except in exceptional circumstances; however, contact orders, or certain aspects of them, can be for a specific period of time.
Who can make an application for a section 8 order?
The following people do not have to obtain permission of the court before making an application for a section 8 order:
- the parent, guardian or special guardian of the child;
- anyone with parental responsibility for the child;
- anyone who already holds a residence order in respect of the child;
- any party to a marriage or civil partnership where the child is a child of the family;
- anyone that the child has lived with for at least three years;
- anyone who obtains consent from: a court order, the local authority if the child is in their care, or everyone who has parental
- responsibility for the child.
Anyone else wishing to make an application for a section 8 order, such as the grandparents of the child, will have to seek the permission of the court before doing so.
In considering applications for section 8 orders, the child’s welfare will be the court’s paramount concern. If you would like to make an application for residency or contact in respect of a child, you may wish to first seek legal advice from a family lawyer.