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Thomas Judge
Thomas Judge, Family Lawyer
Category: Family Law
Satisfied Customers: 32961
Experience:  Over twenty-five years experience
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There is a court order giving residency of child to mother.

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There is a court order giving residency of child to mother. Father has child every other weekend and two weeks during school holidays. He had her one week at Easter and has just had her for one week plus weekend (9 days) to be returned Sunday evening. He did not arrive and after several telephone calls stated that he would not return child as he says that mother's boyfriend has hit her - he has seen no physical evidence of this and mother strongly denies this allegation. Father says he rang the police who told him to use his own judgement; mother rang police who said they can't do anything. She rang on-duty solicitor who says she can't get legal aid - but she can't afford to pay a solicitor. It is bank holiday and mother desperately wants her daughter back. Last year father refused to return daughter and police told him to do so, which he did. When child was nine months old father snatched her from her pram and this is what started all the court cases up to now. CAB is closed; court is closed. What can we do?
Submitted: 1 year ago.
Category: Family Law
Expert:  Thomas Judge replied 1 year ago.
As you have a residency order the police would usually go around and tell the father to give the child back as he is clearly in breach of the order. I recognise that different police forces do different things, but I would be minded to escalate the matter within the force as you have the benefit of the court order. You can take the matter back to court first thing tomorrow morning for an enforcement of the original court order. Happy to discuss. Please rate positively
Expert:  Clare replied 1 year 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.
How old is the child?
Clare
Customer: replied 1 year ago.

The little girl is 5 years old and goes to school near to her home where she lives with her mother and 2 year old brother - the new term starts on Friday this week. Her father lives with his wife and two sons (aged around 3 years and 6 months) in the next town seven miles away. The court order was granted two years ago, and runs to 10th September this year. At the time of the order the judge (only verbally) told the father that he must stop continually falsely reporting to social services, etc. - SS had investigated several times (they have to follow up any complaint, of course) and found that the child's home is a good one and that she was happy and well cared for. We have always encouraged the little girl to love her father as she has to go to him regularly and we want her to be happy. (I am her great grandmother).

Expert:  Thomas Judge replied 1 year ago.
Thank you for the additional information. I remain of the view that as you have a court order it is worth giving the police another call and asking them to go around to the property and ask the father to return the child. If it is necessary for you to bring the matter back to court tomorrow then I would do so first thing - the court should make an order for the immediate recovery of the child. Happy to discuss. Please rate positively.
Expert:  Clare replied 1 year ago.
Hi
I am afraid that in these post Baby P days the Police will not enforce the return of the child where there is an allegation of abuse - however ridiculous.
What you need to do is prepare the applictaion to put before the court in the morning.
The application will be
1. A specific Issue Order for the return of the child to the care of her mother immediately
2. An Order that authorising that the Police assist with recovery of the child
3. An Order staying the existing contact order until a further hearing.
The form you need is here
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/c100-eng.pdf
You should be at your local Family Court by 9.30am
Clare
Expert:  Thomas Judge replied 1 year ago.
has there been any progress with getting the child back?
Customer: replied 1 year ago.

Not really. The mother and grandmother attended the court this morning, and the judge asked mother to fill in a lot of forms, etc. regarding the problem, and these would be sent to the father. The judge said to appear in court on Friday morning. The judge then issued an order for the father to return the child immediately - mother and grandmother to present the order to the father this evening when he returned from work. This they did. He said he was not happy and went into the house closing the door on them saying he would be five minutes. 35 minutes later while they were still waiting outside his house his solicitor arrived. Mother spoke to the police who also attended, but said that although he was flouting the judge's order they had no power to arrest him. He obviously has a solicitor, but the mother cannot afford to employ one, so will have to represent herself in court on Friday. She is very frightened as well as being under tremendous stress over this, as the father is one of those people who can sound very plausible and will twist her words. The child is also to be interviewed by the court, but the father now has two days in which to prepare her for this. We cannot help very much with solicitor costs, as we don't have the money either. They will go back to the judge tomorrow morning and see what else can be done to get the child back.

Expert:  Clare replied 1 year ago.
Hi
I am so sorry that this has happened (again)
Has your daughter spoken to Social Services?
Clare
Expert:  Thomas Judge replied 1 year ago.
I am sorry for the interruptions. The case law is quite clear on this. Namely that the child should be returned to you as the resident parent and the court can attach a power of arrest to the order for this to happen. There is a lot of case law which supports this position and if it would help refer the Judge to Re H (Children)(Residence Order) [2007] EWCA Civ 529 and Re B (A Minor)(Residence Order: Ex Parte) [1992] 2FLR1. That said, I would imagine that if the Judge does these types of hearings as often I as do then he will be familiar with the law. Basically it means that the status quo should be restored pending investigation of any allegations unless it was not safe to do so (and that being in "exceptional cases"). I am happy to continue to answer any questions, but please remember to rate positively. Thanks
Customer: replied 1 year ago.

Thank you for your advice. Both father and mother separately contacted the court yesterday morning, and there will be a half-hour hearing tomorrow. The father has engaged a solicitor, but the mother cannot afford one, so will have to represent herself. It does seem strange that the law says that even though there is a court order the mother cannot get legal aid unless the father physically abuses her herself - neither the breaking of the court order by the father nor the mental brain-washing of a child seems to count. But that seems to be the law, so we have to work with it. I will let you know the outcome of the hearing - but I suspect that this is only the beginning again, as last time it took nearly two years! Thank you for your help and advice. I will, of course rate you positively, but prefer to wait until after tomorrow (just in case I need a bit more advice!). The family has used up a lot of tears this week.

Expert:  Thomas Judge replied 1 year ago.
I bet they have. The rules for legal aid are a nonsense. Happy to help with any more questions.
Expert:  Clare replied 1 year ago.
Hi
Just some suggestions - and I am sure my colleague will add his own
prepare a Chronology that covers all the times that the child has been removed from the mothers care without a warning
Take copies of any letters or reports from social services - list names where possible
Remember that the mother can take someone into court with her as a Mackenzie Friend to take notes and organise papers.
They cannot speak - but they can pass notes etc
Prepare a statement that points out the following (among other things)
1.This is part of an ongoing pattern of behaviour designed to cause the mother maximum distress.
2. he did not notify social services of his concerns - no doubt because he was aware that there is a history of malicious allegations - none the less if there were real fears for the safety of the child then they would have taken action
3. The fact that a solicitor could attend the house one evening shows that the father is aware of the law and had he had real concerns about the safety of the child he could have issued an urgent application himself - but chose not to do so.
4. He chose to flout the direct order o t he court causing maximum disruption to the child
Mum needs to stay calm and focussed in the court - emphasise how important it is that the child returns to her belongings and her normal daily life
Good luck
Clare
Expert:  Thomas Judge replied 1 year ago.
Yes Clare was correct. The point however is that the case law I provided earlier means that the child should be returned to you. That is what the case law say. Best of luck tomorrow and please remember to rate.
Thomas Judge, Family Lawyer
Category: Family Law
Satisfied Customers: 32961
Experience: Over twenty-five years experience
Thomas Judge and other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

The court case took place this afternoon - the father had written a very thick wad of really nasty comments on the child - she is, apparently dirty and smelly, etc (worse than that). She is always clean and (fairly) tidy, as normal 5 year olds are. Also numerous personal things which he said she had told him - and which he could not have got unless he spent a good deal of time grilling her, poor little thing. The father also spoke first thing this morning to the deputy head of Summer's school. But the school now has been told that only Mother, Grandmother or Great Grandmother may pick her up from school unless Mother has contacted them in the morning to say that someone else may do so. The judge stated that he must go back to the agreed original court order. When father said that this was his weekend with the child (it isn't actually) the judge told him that, as he had kept her for four extra days, she didn't think so! This afternoon we got her back, picking her up from school. She was very subdued at first, but is now laughing and cuddling us all, especially her little brother. It's such a pleasure for us all. As far as we know she is not aware of all the stress, and we hope she won't be - we are very careful not to chat about it in front of her. This isn't the end, we know, as Social Services will visit and listen to the mother's complaints and we are sure that unless a long term solution can be found, the father will continually do this every so often - this is not the first time. We believe him to be unwell and have some sort of a slight mental problem, but Summer is the important one here and we will protect her as far as we can, while obviously recognising that he is her father. Thank you for your help and advice.

Expert:  Thomas Judge replied 1 year ago.
I am delighted although I was confident that this would happen. Well done. Any problem then please do not hesitate to come back to me.
Expert:  Clare replied 1 year ago.
Hi
I am very glad that the child is safely home
Clare

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