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3.91Some commentators expressed concern that the reforms would encourage interference by the parent who does not have a residence order but who nevertheless retains parental responsibility.  However, the parental responsibility of the non-residential parent may be little more than symbolic.388  His ability to exercise such responsibility may effectively be removed by the court because no action may be taken which is incompatible with a court order389 and the power of the court to make specific conditions in residence orders is wide.390

Residence order

3.92A residence order is an order “settling the arrangements to be made as to the person with whom the child is to live.”391  The order may simply name the person with whom the child is to live or set out the arrangements in greater detail.  Despite the narrow definition of “residence order”, the courts seem to have interpreted the ambit of such an order widely.  In Re P (Child) (Parental Responsibility Order) Wilson J stated that an order of residence “invests the mother with the right to determine all matters which arise in the course of the day-to-day management of this child’s life.”392

3.93A residence order may be made in favour of two or more persons who do not themselves live together.  In such cases, the order may specify the periods during which the child is to live in the different households.393  Time-sharing arrangements are therefore possible under the Act.394  However, the courts have not encouraged these arrangements.  The Court of Appeal stated that it would need to see a positive benefit for the children from such a sharing before finding the circumstances so unusual as to justify such an order.395

3.94A residence order ceases to have effect if both parents live together for a continuous period of more than 6 months.396  Although this might be seen as an impediment to reconciliation, the English Law Commission considered that it was unrealistic to keep in force an order that the child should live with one parent rather than the other when the child was living with both parents.  If the parents separate again, the circumstances may well be different and it would be wrong to place one in an automatically stronger position than the other.397

Surname of the child

388 Bainham, The New Law: The Children Act 1989 (1990) at paragraph 3.10.

389 Section 2(8).

390 Cretney & Masson, op cit at 544-5.

391 Section 8(1).

392 [1993] 2 FCR 689.

393 Section 11(4).

394 The Court of Appeal in Riley v Riley [1986] 2 FLR 429 disapproved time-sharing arrangements on the ground that children require a settled home.  This decision has effectively been overruled by the Act.  Note that there is no provision that the making of a joint residence order entails an obligation by the carers to consult with each other though this can be  specified in the order.

395 A v A (Minors: Shared Residence Order) [1995] 1 FCR 91.

396 Section 11(5).

397 Law Com No 172, paragraph 4.13.

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