Steven Wade is a family law advisor (McKenzie Friend) with nearly 20 years of experience helping people represent themselves in court. Having been through the system personally and supported thousands of others since, he knows what it’s like to face the stress, confusion, and pressure of doing it alone. This blog shares practical insights that empower you to take control of your case — without the legal jargon or the hefty solicitor’s bill.
What does a residence order mean?
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What does a residence order mean?
- Introduction
- What is a residence order?
- Why did they change the name of a residence order?
- Does there have to be a resident parent?
- Is a resident parent the same as a primary carer?
- What does a residence order do?
- What doesn’t a residence order do?
- Will the police bring the children back if I have a residence order?
- What is the point of a residence order?
- The alternatives.
Introduction
Separated parents put a lot of time, money and effort into getting a residence order for their children. Many of them see it as very important to get one.
But the odd thing?
Most of the people who want one (or have them) don’t know what having it actually means. It’s an odd situation – wanting something badly enough to go to court for it but not actually knowing what they do.
It’s like wanting the latest phone and being willing to pay huge amounts of cash for it without having a clue what features it offers or if you’re even ever going to need them.
Based on the conversations I’ve had over the years, I think I can guess why people want residence. It’s because they think having ones means they have `custody‘. Which is frustrating because custody isn’t a thing either. It hasn’t been since 1989.
So with this analogy explained…let’s dive into what a residence order actually means when it comes to real life.
What is a residence order?
Before we go any further, I need to tell you—they’re not officially called residence orders anymore.
That said – the term is commonly still in use. But the concept of a residence parent is still a thing, legally speaking.
Currently it’s all about Child Arrangements Orders (CAO). These orders can (but don’t have to) contain one or more of the following components:
- Where your child lives
- When your child spends time with each parent
- When and what other types of contact take place (phone calls, for example)
An `order’ can contain other orders (or at least the bits that make up the whole).
The component that replaces residence orders is often known as a `lives with’ order. But they mean exactly the same thing.
Why did they change the name of a residence order?
The change in the names was an attempt to do away with the all-too-common situation of parents fighting over the title of `resident parent’. But the sad fact is that it was window dressing: The system didn’t change with the names. And as I’ve already said, the term `resident parent’ is both still extremely common and something much sought after by parents going through the court system.
For this blog I’m going to refer to them as `residence order’ because it is less clunky than a `lives with’ order or `Child Arrangements Order’. As I say however – they’re the same thing and any court hearing you say them will understand what you mean.
One final thing: A resident parent and a primary carer aren’t the same thing. For someone to be the former they need an order that says they are. The latter is just a practical thing – whoever cares for the children the majority of the time is the primary carer. The same person is often both the resident parent and the primary carer…but being one doesn’t automatically give you the other.
To make things even more confusing – many people think that residence and custody are the same thing. They’re not. This is an entirely different thing.
Does there have to be a resident parent?
No.
There is no requirement for there to be a resident order in an order.
Over the years I’ve heard lots of reasons why ones should be made. Some of them include:
- It’s just a reflection of the reality on the ground. This is completely false.
- It’s `well established in law’. No it isn’t.
- The court will order it anyway. Really?
- It gives the parent seeking one `security’. This is a favoured approach.
- It will stop the non resident parent removing the children from jurisidiction without the consent of the resident parent. A residence order does offer this.
Over the years I’ve seen sleight-of-hand taking place, usually when a litigant-in-person is facing a solicitor representing their ex-partner. What happens is that the solictor drafting the order will add a line in about residence in the draft and tell the litigant-in-person one of the above or not mention it at all. Which then goes back to the court and is `sealed’ (made official). Sometimes, the court will even add it in – making it sound like it’s regular and scarcely worth mentioning.
When this happens, litigant-in-person who has said nothing has `agreed’ to it and this’ll be said later if they suddenly realise what has happened down the line.
It could be that you’re entirely happy with your ex partner having a residence order after reading this post. But maybe you’re not. Keep your eyes open!
Is a resident parent the same as a primary carer?
No.
It’s that simple. A resident parent is someone has a residence order in their favour. A primary carer is just a description of the reality of the situation. They’re the parent who cares for the children of the majority of the time. It’s not something ordered by the court and doesn’t give any legal powers.
Schools and doctors mainly use it to record who the main contact is. Sometimes—wrongly—they treat that person as the only contact. But every parent with parental responsibility has a legal right to be involved in their child’s life.. That right stands regardless of who the child lives with, unless a court order says otherwise.
It’s also used by organisation such as the Child Benefits Agency and the CMS if there’s a dispute over maintenance.
It’s more likely that a primary carer will be awarded a residence order than a non-primary carer, although there doesn’t have to be a residence order for either parent. That’s because it would be…weird for someone with minority care to be the resident parent. It’s technically possible, yes. Just a bit weird.
What does a residence order do?
If you are considering asking a court for a residence order you should know what it is actually going to mean when it comes to parenting your child alongside your ex partner.
At this point, I should point out that they’re no longer officially called residence orders.
Because if it doesn’t do the things you want it to there is no point in having one.
A residence order does the following:
- It’s an official recognition of where a child lives.
- It allows the resident parent to travel abroad with the consent of the non resident parent.
- It allows the resident parent to authorise (or prohibit) the non resident parent from travelling abroad with the children.
That’s it. It’s usually nowhere near what you imagined — or what your solicitor, friends, or family have told you it would be.
Say this and you’ll get a few people who will almost certainly quote the myths which I’m going to dive into below.
What a residence order doesn’t do
The list of what a residence order does is pretty thin. Logically, this means what it doesn’t do is…well…just about anything else. Things residence order doesn’t do includes:
- Being able to make every decision about the children unilaterally (including things like education, health, etc.)
- Being free to move anywhere you like with the children.
- Being able to call the police to collect the children if the non resident parent doesn’t return them.
- Awarding PR for your children to anyone you like.
- Stopping or starting contact when you feel like it.
- Imposing conditions on the non resident parent.
Some of those powers can be given to a parent. It can and does happen. But that involves additional orders within a Child Arrangements Order. But a residence order on it’s own…? No.
Will the police bring the children back if I have a residence order
No. Probably.
In just about every situation where a resident parent calls the police to say their ex hasn’t returned the children as agreed or order the police will do one of the following:
- Tell the resident parent it is a civil matter and to speak to a solicitor.
- Visit the parent who has the children and does a `welfare check’ to make sure they’re in no immediate danger.
- Visit the parent who has the children and tell them it’d be a good idea for them to return the kids and to speak to a solicitor.
- If the parent who has the children gets aggressive, arrest them, charge them with a `breach of the peace’ and return them to the resident parent.
That said? It’s not completely unknown for the police to remove the children from a parent with parental responsibility. If they’re doing this when there aren’t severe immediate risks or an order specifically telling to do so, they’re acting beyond their authority. Any police officer can be in severe hot water – removing a child from a parent with parent responsibility is serious business.
What is the point of a residence order?
It’s a good question. I sometimes struggle to understand why people are so preoccupied with getting them.
I think it may because they think it does give them some of the powers I’ve detailed above. Certainly enough of them are happy to argue the toss and state confidently that it does. Other responses I get include `Why didn’t my solicitor tell me this?’, `If I’d known this before I wouldn’t have bothered fighting through the courts getting one’ and `What is the point of a residence order?’
Here are some of the reasons I think residence orders are a thing:
- They want it `on record’ that their child lives with them (and not their ex).
- They think it gives them powers it doesn’t (see above).
- They think it’ll help them when it comes to claiming child benefits, etc. (it won’t – it’s more about who the primary carer is and you can be one of those without a residence order as I have explained above).
- Some people believe that having one will give them and their children stability. For whatever reason, it reassures them.
- Their solicitor added one into the draft order without any discussion or agreement. It slipped through—I’ve seen it happen!
- They think Child Arrangements Orders have to say who the resident parent is (they don’t).
- The court decides to order one.
With all this in mind – a residence order is seldom the silver bullet many mums and dads seem to think it is.
The alternatives
After reading this you may be saying `So if a residence order doesn’t do what I want it to do, what are my options?’
It depends what you want the Court to order. It’s important to realise that despite what many think, it doesn’t have unlimited powers and can’t order absolutely anything.
That said, the Court knows that some parents seem happy to fight their ex partner even if it isn’t in their best interests and has ways of dealing with them – because there is nothing new under the sun. Your situation is unique, meaning the advice you need is likewise unique.
It’s fair to say that a residence order probably isn’t the answer, though.
For further info – just book an Ask Me Anything session online!
This post is for informational purposes only and does not constitute legal advice.
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