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Ask Clare Your Own Question
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34581
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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I need some advise on a children's matter ahead of a hearing

Customer Question

I need some advise on a children's matter ahead of a hearing this week
Submitted: 1 year ago.
Category: Family Law
Expert:  Clare replied 1 year ago.

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first

What do you wish to know?

Customer: replied 1 year ago.
Thank you. Very summarised details are: history of my ex husband with domestic violence and verbal abuse. Joint residence order (50-50) in place for 5 years now. Children have been saying for a few years they are unhappy at dads and don't want to go back to him, lots of tears etc at hand overs. He has become verbally abusive towards them. My son (aged 12) wrote a note to his teacher and me saying about the abuse and how unhappy he is and that he does not want to go back. School advised I seek help from social services and the police. The police spoke to my son at school and was clear he did not want to go to dads and would run away if they made him, police suggested I should therefore go and collect him from school even though it was dads week which I did and he has been in my care since. Dad was notified of all of this and has been reassured that he is safe and well by me, my son and the police. I then made an emergency application to court to review the residency order and to ask that they speak to my son. My ex also made an emergency app on the grounds that I've abducted and kidnapped him and this case is now listed for a few days time and mine was returned to me.I need advise please: do I resubmit my application again? Should I just include a copy of my application at his listed hearing this week? How seriously will the court view his claims of kidnap etc and what are my best next steps? Thank you.
Expert:  Clare replied 1 year ago.

How old is the other child and how has the care of the children actually been shared between you?

Customer: replied 1 year ago.
1 week on and one week off with each parent. My daughter is 9 years old.
Expert:  Clare replied 1 year ago.

How does your daughter feel about the contact?

Customer: replied 1 year ago.
She is more relaxed about it, says dad does swear and shout - she was asked by the police in front of dad so I think that played its part as well.
Expert:  Clare replied 1 year ago.

What does she say to you?

Customer: replied 1 year ago.
That she loves her dad but does not like being at home with him and that she can relax and be herself at home with me. Also that she misses her brother too as they have never been apart. Things like 'daddy is not kind but you are even if I have been naughty' she stops eating when she goes to his etc
Expert:  Clare replied 1 year ago.

Will your son agree to go for short periods of time?

Customer: replied 1 year ago.
Not at the moment no, he tried to talk to his dad on the phone to explain why he was so unhappy and dad got aggressive and demanding so he hung up on him...
Expert:  Clare replied 1 year ago.

Just to check - what is the exact nature of the application that your ex has made?

Customer: replied 1 year ago.
I don't have it in front of me as it is being posted today but from the correspondce from the court that I have kidnapped and abducted him and that I am a danger and therefore they should be removed from my care
Expert:  Clare replied 1 year ago.

Please do not worry about his allegations.

It is clear that there is ample evidence that you acted in a reasonable way.

You should now prepare a C2 to seek a variation in the existing to Order to state that the children live with you and that your daughter spends time with her father.

I suggest that you ask for the change for your daughter so that she sends more balanced time with her brother - but do not be disappointed if there is no change at this stage.

If possible get a letter from the school confirming the facts about what happened.

They may be reluctant so emphasise that all you are asking for is an account of what happened.

From what you have said it is likely that a CAFCASS report will be ordered

Stay clam and do write out now an account of what happened - our memory can trick us sometime!

I hope that this is of assistance - please ask if you need further details

Customer: replied 1 year ago.
Thank you. Can you advise what I do about my application please? Do I still re-apply or attach a copy of my application to the response / statement I submit this week as the respondent to my ex's application? Can I detail the orders I would like in my reply and if so can you just detail / clarify which ones I need to list / submit please? Thank you.
Expert:  Clare replied 1 year ago.

You should prepare a C2

http://www.justice.gov.uk/downloads/forms/fjr/C2_web_0414.pdf

Which will become your application for a new Child Arrangement Order changing the time the children spend with your ex

Customer: replied 1 year ago.
I think you misunderstood my question: my ex's application was proceed first so it is now technically it is his application that is being heard with me as the respondant. Should I make a separate application my self too or just run with his and raise my concerns as part of that? They have now asked the CAFCASS speak to the children as part of his case and that safeguarding checks are made with the police and the school. Should I make my own application too? Additionally can my son have his own solicitor and if so - 1) do I need to apply to the court to allow that or can I just go ahead anyway? 2) do you know of any? 3) what are my options, they are due to return to Dad's care again tomorrow however my son does not want to go.
Thank you.
Expert:  Clare replied 1 year ago.

I am aware that his applictaion is proceeding - you are entitled to make YOUR application within them - that is what a C2 is for.

In reality you do not need to make the application.

The intervention of CAFCASS is not "part of his case" the matter is now before the court and CAFCASS will advice the court as to the position of the children and will make a recommendation that is about what is best for the children - which may well be living with you.

At this stage your son does not need a solicitor - if either CAFCASS of the court feel that it would assist then they will say so.

Unless you were specifically warned at Court that your son MUST go - your son can simply not go back to dad's if he does not wish to do so

Customer: replied 1 year ago.
The court made the attached order, this is because dad made wild claims at court that made it appear that I was withholding my son rather than this being Freddie's choice. I have attached the order. It does contain a warning however my son has refused to return and says he will run away if he is made to go back. We spoke to the police about it who confirmed that it is a civil matter and they also know where he is and why and that he is safe and they also advised dad too. I am now very unclear on what I should / can do to keep my son safe between now and the hearing date - can you advise please?
Customer: replied 1 year ago.
My barrister did say that she thought I should appeal this - can you also detail how I would do this and on what basis?
Expert:  Clare replied 1 year ago.

If your son does not wish to go then do not make him.

He is of an age where his wishes are important.

It is hard for me to assess why the barrister thought you should appeal - you should ask them on what grounds.

From my position what I see is that no thing has been ordered that addresses the fact that your son does not wish to go

I would have expected that an urgent request for CAFCASS to speak to your son to establish his wishes

Clare and other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
Can I request this somehow? We are approaching summer holidays and as it stands he says he does not want to go back - I am aware that this will look badly on me though in court in September if he does not holiday with dad...what appeal / application should I make please?