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ukfamilysolicitor
ukfamilysolicitor, Family Solicitor
Category: Family Law
Satisfied Customers: 865
Experience:  Divorce, Finances, Children, Domestic Violence, Care Proceedings
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My brother has a son aged 7. The son lives with his mother.

Resolved Question:

Hi. My brother has a son aged 7. The son lives with his mother. My brother has a new partner, plus another child. His son's mother used to allow them to have him from friday to sunday every other weekend, and for half the length of each school holiday. However, for some reason this arrangement broke down a few years ago. Since then they have been in court many times, and the motherbwill stick to the court agreement for a ciuple of weeks and then stop all contact again. My brother can't afford to go to court every time she stops the contact. Is there some sort of order he can get where she HAS to stick to the arrangements, and if she doesn't then wiuld my brother be entitled to apply for custody? The mother has a new partner, and they have a child together. However that child has special needs and needs round the clock care. My brother has told me that when his little boy was younger he would arrive to them in dirty clothes, dirty nappies. He is obviously concerned that if the mother's other child is needing round the clock care, then his son's needs could be neglected, though he has nonway of knowing this. He is named on the birth certificate. What can he do now? He wants to go back to court, but he knows he can't afford tokeep going back to court every time the mother changes her mind. Is there a specifispecific order my brother can apply for?
Submitted: 1 year ago.
Category: Family Law
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Welcome to Just Answer
I am a Solicitor and will assist you.
I am sorry to hear about the difficulties that your brother is experiencing with the mother of his son.
If your son has a contact order or a child arrangements order confirming that his son can spend time with him - then all these types of orders do have a warning notice attached to them.
Basically if the mother doesn't make the son available then your brothers recourse is to return matters back to court to seek enforcement of this order.
If the mother is continually breaching the order for no good reason then the court can impose sanctions on the mother including a fine and or an order to undertake unpaid work.
Whilst courts are often unwilling to impose such sanctions at first - they will if she continues to breach for no reason and the court considers it is necessary to ensure compliance.
There are also recent cases whereby continued non compliance has led to the court making an order confirming that the child should live with the other parent.
To sum up - whilst I understand it is frustrating your brother does need return matters back to court again for non compliance.
Your brother can represent himself in these types of proceedings - this is very common given the restrictions in legal aid.
In respect of welfare concerns - he needs to raise these in his application. In reality the court will likely consider that the standard of care is difficult rather than any harm issues. If however your brother does become aware of any harm issues in the future then he can report the same to social services so that they can investigate.
Please do not hesitate to ask if I can clarify anything for you.
Kind Regards
Caroline
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Customer: replied 1 year ago.
They have been to court almost every month over the past 3 or 4 years, and yest the mother still doesn't stick to the agreement. She goes to court and cries and node her head, and agrees, then the moment she leaves the co6rt she stops crying and says to my brother that she won't be letting him seenhis son.
Also, what happens if the mother decides to get married to her new partner? Does my brother still have rights then?
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
I am surprised that the court hasnt already seen through the mothers act.
From what you have said it seems clear that her actions don't match what she is saying to the court.
The only recourse is to return to court if she is continually not complying. The courts patience with the mother will have to wear thin with the mother after such extensive litigation.
Your brothers parental responsibility will not be affected if the mother was to remarry.
Please do not hesitate to ask if I can assist further.
Kind regards
Caroline
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Customer: replied 1 year ago.
The problem is he can't afford to keep going to court. He's already used his entire savings so far. He is able to back to court once more but after that he won't be able to afford it which will make the mother tell the son that his dad doesn't care about him. We don't understand why she is doing this. She used to be so nice. All my brother wants is a relationship with his little boy. He's been reading up on the human right's act, and the children's act. Both say he is entitled to see his son. Can he use this in court?
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
The Application to the Court is a Children Act case and the Human Rights Act will be at the forefront of the courts mind.
If your brother isn't keen at representing himself then there are various options to get represtation cheaper.
Your brother could consider instructing a direct access barrister. This cuts out the middle man (the Solicitor) which saves a lot in fees - have a look at this link:
https://www.absolutebarrister.com/?gclid=COTLh8_qwsoCFRW3GwodqlYFWw
Your brother could also consider asking a friend to help him prepare his case and go to court with him. This is known as a McKenzie friend. Whilst they cannot speak to the Judge directly they can support your brother.
Kind Regards
Caroline
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Customer: replied 1 year ago.
My brother has just told me that he has to pay his ex's court fees as he's the one takung her to court. Surely this can't be right?
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
The rules in respect of costs in family proceedings of this type - are that 'each party bears their own costs'.
It is very unusual in Family proceedings that costs orders are made. The reasoning behind this is that courts do not wish to discourage an application of this type.
Costs orders will only be made his exceptional circumstances whereby the court considers that one party has acted so unreasonably in making the application to the court.
If the mother asks for your brother to pay her costs then he should not agree to do this. In fact he should be the one that asks the court to make a costs order against her for having to return matters to court again to again seek enforcement of a court order that she should be complying with. Whilst it is no guarantee that the court will make an order for costs in the fathers favour - given the general rule that each party bears their own costs - I would still say that it is worth trying to be argued in the circumstances you have described.
Kind Regards
Caroline
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