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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34123
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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URGENT-Child cutody McKenzie representing respondent mother

Resolved Question:

I am currently a McKenzie friend representing a respondent mother in a custody case which may well be concluded on Monday. I would be grateful for advice as... finding of facts has been done (before my involvement) despite strong evidence to the point no facts where found on her allegations of an abusive relationship (probably due to the fact that she was representing herself against a seasoned barrister) CAFCASS and the Judge are now claiming parental alienation (without ever mentioning the term). They have awarded custody to the applicant farther on an interim hearing for what the judge described as a test period. CAFCASS are clearly siding with the applicant father and are also the childrens gaurdian, the final hearing is on Monday. CAFCASS are stating that they "believe" that difficulties getting the children (girl aged 11.5 boy aged 13) to contact and problems while they are there are caused by manipulation from the respondent mother. Their descriptions of how these manipulations take place can get highly elaberate and when questioned on credibility CAFCASS worker admits "it's just what I believe". Despite this the judge still sides with her version of events. During the "3 week test period" there has been no contact between CAFCASS and the children, the only source of evidence being given to the court about how this test went is in the applicant fathers statement. I have got the judge to accept a transcript of txt messages between the mother and children over the test period. The mother states (backed up by txt messages) that the children are miserable and afraid but the applicant fathers statement says everything was fine within a few days. My problem is...that CAFCASS's opinion seems quite intractable and neither the judge or CAFCASS will believe the mother or children and all my possibilities od a win seem to end in an adjournment while CAFCASS questions the children disbelieves them and comes back to the court. Can you suggest a way forward?

Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
What do the schools say?
Clare
Customer: replied 3 years ago.

The children were previously home educated (ACE evaluate on a regular basis. Both parties have decided to re-introduce the children to mainstream schooling next term. The respondent mother (who I represent) has chosen two schools for the children (one new Arts based academy for the girl and a longstanding school rated good to outstanding overall outstanding). The applicant father has chosen the only school in his area rated needs improvement with a special mention that SEN children perform badly (important as the boy may have some special needs as yet unknown). ACE have said that the children are well educated.


 


Thankyou very much for helping in this, I am feeling a little out of my depth.

Expert:  Clare replied 3 years ago.
Hi
What contact has mum had with the children during this period?
Why has the issue of possible Special needs not been investigated earlier?
Clare
Customer: replied 3 years ago.

Over the last three weeks she has had one visit for a few hours that CAFCASS insisted she had to find a friend to supervise. Indirect contact is one call on monday and wednesdays with an unlimited number of texts (which I have asked to be transcribed to be entered into the statement).


 


The special needs was first brought up by a psych expert for the court where he espoused one of his own theories to explain the boys behavior and then suggested aspergers... Nobody really holds much sway in the aspergers but he does present as a slightly strange child but as his previous education was home ed it has never been an issue until now.

Expert:  Clare replied 3 years ago.
Hi
What did the Expert recommend with regard to residence and contact?
Clare
Customer: replied 3 years ago.

The expert suggested a 3 month stay with the applicant father, this has not been viewed as appropriate by either CAFCASS or the judge. He states that the boys unusual affect is due to a 'halo effect' (his own non standard use of the term) produced by the parental alienation. Although both the Judge and (although slightly less) CAFCASS do seem interested in his theory niether rate his solution much.


 

Customer: replied 3 years ago.

Hi Clare,


 


Just wondering if you have had any thoughts with regards ***** ***** custody case?


 


Thank you

Expert:  Clare replied 3 years ago.
Hi
How long has this been litigated for and what was the mother's objection to contact?
Clare
Customer: replied 3 years ago.

Hi Clare,


The case has been rolling on for over two years. Initially the respondent mothers position was backing the childrens reluctance to contact and a supervised model was created but this broke down It lasted for a week last year but neither the children or the applicant father felt comfortable. Previous to the court case the mother supervised contact between them for 4 years and moved on to alternate weekends unsupervised without the need for any order but this broke down when the children complained that they were scared of his shouting and swearing at them. They are stating that this behavior is already continuing. Under my advice she now is not blocking contact, just blocking custody. They live 4 hours apart now and as both the children will be attending school in sept a standard shared access arrangement would be problematic.


 

Expert:  Clare replied 3 years ago.
Hi
Which of them moved away?
is the 13 year old competent to instruct a solicitor without a guardian?
Clare
Customer: replied 3 years ago.

The respondent mother moved house over a year ago, citing work opportunities.


The boy is a very inarticulate teenager and probably lacks the maturity to do so. He tends to rely on his sister for the sensible decisions.

Expert:  Clare replied 3 years ago.
Hi
Did the work materialise?
Clare
Customer: replied 3 years ago.

Some, she is a self employed relaxation masseuse and is building up a regular client base. Her income is still topped up by benefits but she is nearing self sufficiency (I dont think the court case helped).

Expert:  Clare replied 3 years ago.
Hi
And she could not have done that where she was?
Clare
Customer: replied 3 years ago.

No, she was living in a small rural area with not much opportunity (or people) her line of work works better in a city.

Expert:  Clare replied 3 years ago.
Hi
Thats good
What offer of shared care will she make?
Clare
Customer: replied 3 years ago.

She's offering alternate weekends school holidays shared and alternate Xmas. He is going for custody based on parental alienation offering supervised contact (minimal is all his statement said) for first 6 months then to alternate weekends and hols

Expert:  Clare replied 3 years ago.
Hi
Do either of the children do activities in their mother's home area?
Clare
Customer: replied 3 years ago.

Nothing that cannot be restarted in their fathers home, although the boy has made good friends in his new home that he normally struggles to do. The girl has an active social life but would probably adapt.

Customer: replied 3 years ago.

The mother does have two horses though.

Expert:  Clare replied 3 years ago.
Hi
You do not need me to tell you that you have become involved too late to ensure the most effective outcome.
You have already increased the chances of success by moving to an offer of Shared Care
Grab the chance of further delay with both hands - it is not good enough that the Guardian has not spoken to the children since the move - and the solicitor acting for them should also have done so.
Obviously this needs to be presented in a very matter fact and unemotional way - but the simplest of statements that in such a major change the initial outcome needs an independent review is not unreasonable
The schools issue is a good one that you should expand on
Your major problem may be the mother herself - she MUST be seen to acknowledge that however unwittingly she may have been part of the problem- she does not have to believe it but she MUST talk the talk and she MUST do it convincingly
She doesn't need to acknowledge anything deliberate - I mean a verbal acceptance of some kind that maybe the children were so closely bonded to her that they were reflecting her fears and that she has now had the chance to see this - hence the offer of shared care
Point out that there is no doubt that the children are well attached to her so the current separation is inevitably causing trauma - and there is no longer any necessity for it given the offer of shared care
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 3 years ago.

Thank you SO much!


I was worried about an adjournment only giving CAFCASS a chance to regroup and continue as before but this looks like a more positive opportunity now. We do have a charity called the NYAS offering to take on guardianship, do you think it advisable to attempt to unseat CAFCASS as guardian or merely have them (or somebody else) run a review parallel to theirs. I think thats my only question.


Thank you again and if anyone else has trawled through I cant recommend Clare enough, she's been fantastic Smile

Expert:  Clare replied 3 years ago.
Hi
If NYAS are willing to be involved it would be a good step - and be guided by NYAS as to whether to simply have them review it or not.
Remember you need to strike a balance - you do not wish this to be seen as a last desperate effort to avoid contact - but as a positive step likely to benefit the children
I understand about the delay - i even partially agree - but at this stage you need to just see it as extra time within which to create the new picture of mum!
Clare
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