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Harris
Harris, Law Specialist
Category: Law
Satisfied Customers: 2733
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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If I want to change a residential order for my Son, who is

Customer Question

If I want to change a residential order for my Son, who is 15 turning 16 on 30 Dec 2016. What do I do as my son wants to leave his current schooling and come to live with me and continue with his schooling in London. Does the residential order stop after a child reaches 16? Can you please advise what the way forward is?
Submitted: 10 months ago.
Category: Law
Customer: replied 10 months ago.
My son is starting his GCSES from September 2016 but does not want to continue living with his father and wants to come back to live with me, his mother on a permanent basis and how long does the process take and the cost involved?
Customer: replied 10 months ago.
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Expert:  Harris replied 10 months ago.

Hi, thank you for your question. The residence order will end when he turns 16 unless it specifically states on the order that it is to last until 18.

Have you discussed with the father what his views are regarding the change and if he will agree?

Customer: replied 10 months ago.
Unfortunately, I am not in talking terms with my estranged husband, therefore I have not spoken to my husband how he feels about the change and if he's willing to agree to the change of residency. After 6 years, my son came to see me this week and mentioned that he feels depressed living withhis father as not been looked after properly and wants to comeback to live with myself, mother. My child did mention to me that his father has told him to go and live with the mother if wishes to do so when they have heated arguments, but a formal conversation has not been made.I have checked the residence order and there is no date mentioned, therefore I believe the order will not be inforce once my child reaches 16 on the 30th December 16.My son is starting his GCSEs in September 16 and wants to move ASAP but will I have to wait till Dec 16 for my son to come on his own accord or will I still need my husband's agreement even after he turns 16 as the residence order will not be inforce by that time. How will the changing of schooling work will I be able to change my son's school? Please advise on my way forward.I look forward to hearing from you soon.
Expert:  Harris replied 10 months ago.

Thank you for your other post. As the order does not specify it expires at 18, it will expire when he reaches 16 years old.

I understand that you are not on talking terms with the father, however he would need to be aware of this change and as he has parental responsibility you need to consult him regarding the change of school prior to age of 16 - therefore I would suggest you formally write to him regarding the change of plan.

Legally, you should be changing the order, however, practically given your sons age if he no longer wishes to live with the father then a court will not force him to do so.

I hope this assists you. If you found this information helpful please provide a positive rating using the stars at the top of this page. I will not be credited for your question without a positive rating. Thank you.

Customer: replied 10 months ago.
Hi Harris
Thank you for your message.
Please can you advise me how do I go about formally writing to my husband regarding the change of plan and do I really need to legally change the order or can my son come on his own accord when he is 16, without making any amends?If I need to legally change the order, what is the process can this done by myself or do I need to go through my solicitor? Can you please provide me the steps on the way forward to change the order. Obviously, I will be applying for change of schools prior to him turning 16 as he is starting his GCSEs and would like to change schools at the beginning to avoid any distruptions in his schooling. I am on a low income, hence want the change of order to be cost effective. Will I need to attend court or will it be done through solicitor? Please advise me with the steps to go through the change and the costs involved?
Expert:  Harris replied 10 months ago.

Legally, if the father does not agree to your son living with you he can apply to court for enforcement of the order.

If you were to apply to court you need to use form C100 and a £215 court fee to vary the child arrangement order. You will need to issue the application urgently as if you do not it will take months for the courts to deal with. You will need to attend court and likely prepare a statement - it can be done through solicitors or a barrister, or you can represent yourself.

However, given that the father has told him to go to live with you he may be willing to agree to this without you needing to go to court. You should write him an email or letter informing him of your son's views and how this is in his best interest, as well as which school you propose him to go to.

Customer: replied 10 months ago.
Thank you very much for your prompt message.Can my solicitor write to my husband on behalf of me?Please advise and thank you very much for your advise it has been very helpful.
Expert:  Harris replied 10 months ago.

Yes, your solicitor can write to your husband if you would prefer.

Harris and 2 other Law Specialists are ready to help you
Customer: replied 10 months ago.
Thank you very much and I am very happy with your service.
Expert:  Harris replied 10 months ago.

No worries, I hope it goes well. If you have any questions in the future you can ask for me directly by starting your question For Harris

Customer: replied 10 months ago.
Once my solicitor has received his consent that he is happy with the change what is the next steps that needs to be done? Can my son come to live with me, prior to him turning 16 once his school admission has been sorted out?
Customer: replied 10 months ago.
or do I have to wait for him to turn 16, i.e. adter 30/12/16
Expert:  Harris replied 10 months ago.

It can be done immediately - if you wish your solicitor can prepare and send a consent order to court to change the order, but unless done urgently he will likely turn 16 before the court finalise the change. But if the father agrees then it should be fine as any enforcement application by him can be countered with his agreement

Customer: replied 10 months ago.
Thank you for your message.
Is it possible to call me to discuss further rather than typing.
Hence once the consent is received, a consent order can be prepared and sent to the court. The cost is £215 right? Can my son come to live with me after consent received from immediate effect once schooling has been sorted out or will he have to wait before the court finalises the change?
Customer: replied 10 months ago.
My son does not have to wait until the court finalises the change of order does he? Can he move back with me from immediate effect once change of school sorted and consent has been received, whilst the courts finalise the change of order? Please advise
Expert:  Harris replied 10 months ago.

Your son can move to live with you as soon as the father agrees - this will prevent an enforcement application by him. If you wished to vary the order a consent order can be sent to the court.

The court will likely take a few months to finalise in any event - and by that time he will be 16.

Customer: replied 10 months ago.
Thank you very much.
Just to clarify, once received consent by my husband re: change. My Solicitor would prepare and send a consent order to court to change the order? If consent received, when my solicitor sends the consent order to court I wont need to attend court will I?
Please confirm
Expert:  Harris replied 10 months ago.

It is usual in child arrangement applications that at least one hearing is required at least for the judge to speak to you both to ensure that the order is in the children's best interests. CAFCASS will also be involved to carry out updating background checks and report to the court.

Customer: replied 10 months ago.
Hi Harris
Thank you for your message.
Even if we receive consent from husband, I still need to attend a court hearing and involve the CAFCASS as I really don't want to do this as I don't have the money to go through courts. I was under the impression, once we receive a consent, my solicitor will file a consent order to change.
What if my son resides with his father until he turns 16 and then come on his own accord to finish his year 11 schooling, can he do that? Will I have to submit and change of order then?I have just spoken to Brent Council to apply for an in year application and I was advised that they give priority to children living in the Local Authority otherwise they can't offer him a place. They are asking to submit and email to support the application why want to move schools, why not at same address and mention the change of residence order. Once received application based on the supporting information, if they are able to offer him a place then will be called in for an interview.
Can you please help me what I can write in my application to support my in year application as my son is not currently living with me. Please can you assist?
Expert:  Harris replied 10 months ago.

To be honest, if the father agrees to the move and can provide this agreement in writing you can change the arrangements for him to come to live with you. You do really need a court order to reflect the change and if the father has consented to the move he would unlikely wish to enforce the order that is in place, and in any event he will not be able to enforce anything once your child turns 16. The letter from the father consenting to the move can be used to support your application for schooling

Customer: replied 10 months ago.
In addition Brent Council has advised that year 11 is a critical year to pull child out of school due to GCSES hence a strong supporting letter needs to be submitted in order to grant my child a place as not currently residing at the Local Authority where he will be residing. Please can you help me to draft a letter to support my application.
Expert:  Harris replied 10 months ago.

Unfortunately education law is not my expertise and I would suggest you post another new question for another expert regarding this

Customer: replied 10 months ago.
What if he stays with father until after turning the age of 16. Do I still need to do anything?
I really wanted to submit a supporting email for application that I have done today to get the ball rolling. Please can you assist in drafting something what to write?
Customer: replied 10 months ago.
Thank you that's fine.
Can you just clarify What if he stays with father until after turning the age of 16. Do I still need to do anything?
Customer: replied 10 months ago.
I wait four my last question to you - What if he stays with father until after turning the age of 16. Do I still need to do anything?
Expert:  Harris replied 10 months ago.

After 16 he can leave and come to you without any issues.

Customer: replied 10 months ago.
Thank you
Customer: replied 10 months ago.
The only thing about my son leaving after 16 to come to live with me is the schooling as it's a vital year and he has to be living here to get priority place for schooling unless we provide supporting information to support application which means consent order form and courts/CAFCASS involved.Is there way around for my son to come with just a signed consent from my husband without going to courts etc?
Customer: replied 10 months ago.
I look forward to hearing from you soon regarding my last question to you.
Expert:  Harris replied 10 months ago.

If the father consents to it he can come to live with you

Customer: replied 10 months ago.
But that means going to the court for hearing with CAFCASS involved? Or we don't have to do anything once receive consent. Sorry I'm just getting confused whether or not with consent whether we need to go to courts or my son can just come and live with me. I am getting discrepancy information as told by my solicitor who dealt with my divorce that if the child makes up his mind that he wants to come and live with me, he can just leave and the courts cannot do anything. Is that true.? Please advise as I'm so confused.
Customer: replied 10 months ago.
I await for your answer.
Customer: replied 10 months ago.
Please advise
Customer: replied 10 months ago.
I think I've got the jist of it: If my husband consents to the change, my son has decided he wants to come to live with me, then my son can immediately come and live with me. Am I right.?
Customer: replied 10 months ago.
Cont....I do not need to do anything else and the courts cannot do anything as I have the consent and my son has decided to come and live with me.
Expert:  Harris replied 10 months ago.

Yes, if the father consents your son can immediately come to live with you without issues or application to court. However, as there is a residence order in place the father can apply to coirt to enforce this if he later changes his mind, which may be why you should consider varying the current order.

Customer: replied 10 months ago.
I understand. But even if he had given his consent, he can change his mind? He turns 16 in December so he can't enforce an order after that time. So you saying as there is a current order in place., once received consent, apply for a consent of order to change prior to*****it will stop my husband putting in an enforcement order later, as the consent will outweigh the order, plus by the time the court finalises the order, it will take months by that time my son will be 16 and no order is enforce. Is that right. Please confirm.
Customer: replied 10 months ago.
Cont....but what about if my son has made up his mind and has decided he wants to come to live with me without varying the current order and he comes to live with me on the basis of consent . Can my husband still enforce an order if he later changes his mind? Can he go back on his consent and enforce? How long does enforcement action order take, if one was made? Can the courts order my son to return back to his father if order was enforced, despite my son decides he no longer wishes to live with him. Can they go against my sons wishes? I thought as he is at the age he can make his his mind up and courts cannot enforce the child to return back to his father. Please confirm.
Expert:  Harris replied 10 months ago.

If the current order remains in place your husband has the right to apply for enforcement and the court will consider the circumstances and breach of the order - your position will be that your husband has provided consent and your son wants to live with you - given his age, and ensuring that there are no welfare concerns, it is unlikely that the court will wish to enforce the order especially as he is to turn 16 soon.

Customer: replied 10 months ago.
Thank you and I look forward to hearing from you with regards ***** ***** last queries.
Customer: replied 10 months ago.
Thank you so basically my husband can apply for an enforcement prior to my child turning 16, but as we have consent and given of his age and my son wants to live with me, it is unlikely that the court will enforce the order, hence the son will not have to be returned to the father? Is that correct?
Customer: replied 10 months ago.
I look forward to receiving your confirmation soon.
Expert:  Harris replied 10 months ago.

Yes that is correct

Customer: replied 10 months ago.
Can I ask you one thing? Suppose the we receive a consent and my son comes to live with me as he wants to, my husband changes mind and puts an enforcement order prior to 16 and my son then changes his mind that he wants to live with father. What are the recupuccusions, other than my son goes back to his father? Will there be any recuppussions on me? Please confirm as thats what I am afraid of as its happened before.
Customer: replied 10 months ago.
Thank you and await for your reply shortly.
Customer: replied 10 months ago.
I await for your confirmation shortly as this is the concern that is worrying me.
Thank you
Expert:  Harris replied 10 months ago.

I do not think that there will be any repercussions against you as you would have acted in the interest of your son given his views and the consent of his father (if both of these are provided)