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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33283
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Child denied access to mother

Customer Question

My sister was asked to leave her partner's home when they split up and in fear that an incident might arise, I called the police. The police suggested she did just that. That she leave and come back and collect her daughter when she was newly settled. In her naivety my sister left unaware she was within her rights to remain. The father of my sister's daughter therefore effectively threw my sister out and self-appointed himself main carer against her will (and pending the outcome of a residence-order which we will apply for). He is being inconsiderate and uncooperative about contact. A few issues here: Parents have equal rights so why can't caring for the child be shared pending an order? My sister was the main carer, she's never had a job, her job was caring for her daughter and being denied access to the child is killing her and no doubt affecting the child who is 2.8 months old. She was tricked into this situation by a manipulative controlling man. She would never have left the house had she known she could have stayed. A complaint with the IPCC has been lodged. Secondly is her solicitor right in saying we should apply for mediation then legal aid then the residence order? Can't we just apply for the R.O and stipulate some sort of joint care meanwhile? The father is Bangladeshi Muslim and the mother white British. It is known to the authorities that she is a victim of D.A. It seems unjust. I am considering taking it to Human Rights.

Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is XXXXX XXXXX I will do my best to help you but I need some further information first.
When did this happen?
What contact has she been offered?
Clare
Customer: replied 3 years ago.
I can send you a full word document of events. This happened aboutOne month ago and meanwhile we have been trying toWork our way through the minefield of problems. My sister has ended up in a shelter. Initially he agreed to some contact but things for ugly.Then contact was suggested through the solicitors and that Has only commenced this week but already is showing signs of failing.It's the quality of contact too. The contact offered was Wednesday 9-3. Friday 9-3 and all day Saturday. He is now saying (not via the solicitor) that this not the contact he was offering but that she could choose a 3 hour slotWithin these times. We feel this is insubstantial to go from main carer to this.
Expert:  Clare replied 3 years ago.
Hi
I agree that this is too little
Is the child being reasonable well cared for?
Clare
Customer: replied 3 years ago.

I would say her primary practical needs are being met but her mother has been torn away from her and mother and daughter are emotionally suffering. My sister has had no quality contact with her during this time. Both are being punished do something outside
Of their control. I'm sorry I might fall asleep . Can this be resumed tomorrow?
Expert:  Clare replied 3 years ago.
Hi
Are you able to fund an immediate application?
What are her long term housing prospects?
Clare
Customer: replied 3 years ago.

My sister is originally from Minehead in Somerset. This however is all taking place in Manchester. Until April this year they were (and I still am) based in Gloucestershire. My sister has tapped into a council benefit/bond funded scheme and is signing a new rental lease tomorrow for a small house in Minehead. She had no option but to choose Somerset because
If her support circle down there. Also she feels unsafe in Manchester. It's all alien to her.

We could fund an application but I believe she is entitled to Legal Aid (as we don't have parents I am supporting her financially until she is sorted) and my funds are fast diminishing.

Expert:  Clare replied 3 years ago.
Hi
I appreciate the family support issue but in terms of the current situation living in Minehead is going to make things worse.
She needs to be in Manchester - near the child and near the father so that if the court does make an Interim shared care arrangement then it is going to be possible - whereas living in Minehead it will not be
An urgent application for a Residence Order does need to be made - and at the first hearing there does need to be a suggestion that there is shared care - so she HAS to stay in Manchester.
If she does not then it is likely that the child will stay with Dad while the court decides the long term arrangements.
If the solicitor does not think that your sister is entitled to Emergency legal Aid then I am afraid that Mediation does need to be tried first - although the fact that she is in a refuge does make me question the solicitor's Judgement on that
However the application needs to be made without delay - so I would suggest that it is completed and sent in as soon as possible
The form is here
http://www.familylaw.co.uk/system/uploads/attachments/0006/9047/C100.pdf
and the fee exemption form is here
http://www.justice.gov.uk/downloads/forms/hmcts-fees/ex160a-eng-upto-6.pdf
she needs to ask for an urgent hearing
More details here
http://www.cafcass.gov.uk/media/168195/cb7-eng.pdf
I hope that this is of assistance - please ask for further details
Clare
Customer: replied 3 years ago.


Thank you. I appreciate your comment re location however we believe we can manage the distance whilst not impacting on the father's time with his daughter. The time is likely to be split than shared on a day to day basis and my sister can offer her daughter a much better quality of life in Minehead. For one she will not be subject to his manipulation and control. We know that if she lived in Minehead she could build a healthy life for her daughter rather than living in constant intimidation in Manchester. The move at Easter was a tentative 'let's give this a go'....but whence the father returned home he became more immersed into his culture and excluded my sister. We now think the move may have been the beginnings of a bigger plan. Meanwhile my sister can stay at the refuge as often as she wants until this is resolved. Therefore she does have accommodation in Manchester and her plan was to make the most of this until a court decision. Do you think this will really jeopardise her chances? The child doesn't really have any ties with Manchester other than her father and providing my sister accommodates his rights then surely it oughtn't matter where the mother lives. If my sister remains in Manchester things will be frequently ugly - how does this benefit the child? Surely shared quality time with each parent is better than diluted stressed time with both?

 

Also can we make the application without the need of a solicitor? And would this put in jeopardy the Legal Aid entitlement?

Customer: replied 3 years ago.


Thank you. I appreciate your comment re location however we believe we can manage the distance whilst not impacting on the father's time with his daughter. The time is likely to be split than shared on a day to day basis and my sister can offer her daughter a much better quality of life in Minehead. For one she will not be subject to his manipulation and control. We know that if she lived in Minehead she could build a healthy life for her daughter rather than living in constant intimidation in Manchester. The move at Easter was a tentative 'let's give this a go'....but whence the father returned home he became more immersed into his culture and excluded my sister. We now think the move may have been the beginnings of a bigger plan. Meanwhile my sister can stay at the refuge as often as she wants until this is resolved. Therefore she does have accommodation in Manchester and her plan was to make the most of this until a court decision. Do you think this will really jeopardise her chances? The child doesn't really have any ties with Manchester other than her father and providing my sister accommodates his rights then surely it oughtn't matter where the mother lives. If my sister remains in Manchester things will be frequently ugly - how does this benefit the child? Surely shared quality time with each parent is better than diluted stressed time with both?


 


Also can we make the application without the need of a solicitor? And would this put in jeopardy the Legal Aid entitlement?

Expert:  Clare replied 3 years ago.
Hi
So your sister will live in Manchester - in the refuge - during the part of the week that the child is with her?
Clare
Customer: replied 3 years ago.


Well no, that's hardly ideal for the child. If my sister gets her for half of the week she will be taken home to Minehead but my sister can use the refuge as a base if she needs to be in Manchester as back up or incase of illness. My sister would want to integrate her child into a normal toddler life in Minehead asap. At the moment the child is not integrated. She just spends all her time with the family (Muslim), one key member who denied she existed for the first two years of her life.

Expert:  Clare replied 3 years ago.
Hi
What you have said illustrates the problem here.
It is highly unlikely that the court will sanction an interim arrangements that leads to a small child shuttling between Manchester and Minehead every week.
If your sister wants the best chance of having shared care immediately she needs to be in Manchester.
In the LONG term there is no problem in saying that if she has residence she intends to move to Minehead (although it is not impossible that she will be faced with the choice of either moving to Minehead OR having the shared care of her child) but in terms of securing an immediate shared care arrangement at an Urgent hearing it is just not going to work
I am sorry - I know that this is not what you wished to hear and beleive me I think the child should indeed be with Mum - but at this moment the move would be a problem
Clare
Customer: replied 3 years ago.

Ok. A couple more things then I should have enough info to plan our next step.


 


1) Can we make the application for interim contact ourselves without the need of a solicitor? And would this put in jeopardy the Legal Aid entitlement?


 


2) If my sister were to reside in the refuge for the part of week in which she has the child (which is for women and children with excellent facilities) - how would the court view this, in your experience.


 


3) Are you a UK based solicitor and can I request that my question not be viewable by the public as some of the questions on here are.

Expert:  Clare replied 3 years ago.
Hi
1. You can if you wish - and no it does not jeopardise the funding
2, Nit great - but better than Minehead
3. I am indeed - and as I understand it you can do this at the end of the process
Clare
Customer: replied 2 years ago.

Clare, Following on from the above my sister filed and attended court with her solicitor at an emergency residency order. The reason being the child was/is showing signs of confusion and dysfunctional behaviour.


The contact at that point was 3 hours over three afternoons a week. The request was for equal parental care pending final court outcome and for some X-mas overnight stay. What was granted was 4 nights overnight care over Xmas but thereafter only 9-4 every Saturday (but not at the father's home).


 


Do you think the solicitor failed my sister?


Will this bare any relevance on the final outcome following a CAFCAS report?


It seems that we have gone sideways rather than gained anything?


The negotiations were done through solicitors and the court only endorsed the ''agreement'' - the father's solicitors would simply not negotiate.


Will the father's attempts to deny/discourage contact go against him?


 


We need some hope to cling on to.

Expert:  Clare replied 2 years ago.
Hi
When is the next hearing?
Clare
Customer: replied 2 years ago.
February 2014
Expert:  Clare replied 2 years ago.
Hi
I suspect that the position was that the solicitor did they best they could with an opponent who would not negotiate.
She has got Christmas - and not only is that good for her and the child - but the fact that she has had the child for four days will establish that there is no reason at all for her not to have overnight contact - and the father's attitude will indeed go against him
Clare

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