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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33810
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 had a final hearing in Central Family Court in London last

Resolved Question:

I had a final hearing in Central Family Court in London last Thursday. The whole court proceedings, incl the fathers application was for Child Arrangement Order that the daughter (18 months old now) spend regular time with the father. She always lived with the Mother (me) and now after the final hearing I received a draft order stating that the daughter lives with the father at certain occasions and not spend time with the father.
The draft order also says that the father agrees for the mother to go on holidays to Poland (where the mother comes from) once a year for no more than 21 days. The mother have never asked for such agreement and does not agree for the order to state this.
Please advise if it is legal for the other party to suddenly say that the final hearing was listed to consider father's application to spend time and live with his daughter when it was only about spending time?
Also, please advise if it is legal for the other party to state in the final order that " this order includes a child arrangements order (the part of the order setting out living arrangements for a child and about time to be spent or contact with another person)" whilst these proceedings were never about living arrangements and for another person spending time with my daughter only her father?
Please also advise whether it is legal for the other party to state in the order about the 21 days that the father allows the mother to take once a year to see her family in Poland whilst the mother does not agree to this?
Submitted: 7 months ago.
Category: Family Law
Expert:  Clare replied 7 months 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

Do you not wish to take the child abroad?

Customer: replied 7 months ago.
Hi Clare,Yes, I do wish to take the child abroad. However, I do not want the order to state that I can only take the child to visit family in Poland once in a year and that's only in summer for 21 days as my understanding is that if the child lives with me, the law says (Children Act Section 13) that I can remove the child for up to 28 days.
Customer: replied 7 months ago.
I am very concerned that the other party now attempt to say in the order that the child lives with the father when this was never the case and the proceedings were never re living arrangements only spending regular time.Please advise if this is legal and what I can do in this case if they will "produce" such order without my agreement. My understanding is that appeals are most of the time refused, unless the was a serious mistake etc...however, I do not agree for this order to state that the child lives with her father.
Expert:  Clare replied 7 months ago.

Was the wording not agreed at Court?

Customer: replied 7 months ago.
No. My understanding was that the daughter spend time with the father but does not live with him. There was no discussion about it. His application was Child Arrangement Order to spend time and I made cross application that the daughter lives with me. There was S7 report produced by social worker 4 months ago that also states that the daughter lives and should live with the mother.
Expert:  Clare replied 7 months ago.

Have you shown a copy to the Barrister who represented you?

Customer: replied 7 months ago.
It was sent to the barrister. She says that the order reflects what we were forced to agree at court. Ii argue with her that I have never agreed that the daughter lives with the father and that this was not his application, and that it was not even discussed.
She also says that if I don't agree for her to sign the order I will have to deal with the other party myself.
I cannot agree, and have never agreed, to this for a number of reasons as stated above.
Customer: replied 7 months ago.
I even have correspondence exchanged prior to the final hearing that the father agrees for the daughter to live with me. He has suddenly changed his mind when he found out that if the order states that the child lives with me, I would be entitled to leave jurisdiction for up to a month. Therefore, they try to hijack the order/hearing that it should state that the child lives with him.
Customer: replied 7 months ago.
The father has been manipulative throughout the whole proceedings, and my issue is that he has got a lot of money and has the whole legal team working for him. I don't even have a solicitor. However, I am sure that the draft order is not right and surely they can't just say that the daughter lives with the father without him even applying for it etc whilst I applied for such order ? I am very concerned that they will just send it to court that it has been agreed and am not too sure how to deal with it.
Do I hire a lawyer to email the Court? Do I make a complaint that perhaps it is illegal what they are trying to do ?
Please advise.
Expert:  Clare replied 7 months ago.

What time will she be spending with her father?

Customer: replied 7 months ago.
I am also concerned that at the hearing the Judge was very harsh for me. She thought that I was this horrible mother who does not want the father to have any contact with his child whilst I am totally opposite. I offered overnight contacts and every week midweek contacts etc...
My concerns are that if the order will have to be send back to the Judge for clarification, can the Judge just order that the child lives with the father as well without any hearing regarding this matter and despite that the father has never made an application for it? Also, despite that s7 report states that the child always lived with the mother and should live with the mother.
Customer: replied 7 months ago.
It has been forced on me that she goes immediately to her father for overnight so it will be on alternate weekends Saturday 9:30am till Sunday 6pm and every Wednesday 5p till Thursday 5pm (I never agreed to this contact as the father is not available so the Judge said to me that his parents can have that contact).From Nov this year, the father will have alternate weekends but from Friday 5pm till Sunday 5pm and every week Wednesday 5pm till Thursday 5pm. He is already seeking 2 nights midweek and said in court that "he is looking into moving the mother and his daughter close to his house in Essex" (I always lived in south east London and don't want to move)..
Expert:  Clare replied 7 months ago.

So you would not be able to take her away other than with his agreement in any event?

Customer: replied 7 months ago.
I can take her away for holidays with 14 days prior notice to the father (which I agreed) but then suddenly this 21 day came up and specifically only for Poland to visit my family and only in summer once a year Ii can take 21 day.
I said in court that I would not take her for this long anyway when she's still very little so that she does not miss out on the contact with her father but I don't want any restrictions within the order as I don't understand why there should be any. My understanding is that the child lives with me and therefore automatically my rights are to be allowed to remove the child for up to a month.
Customer: replied 7 months ago.
I thin k that the main issue within the draft order is that they try to state that the child lives with him whilst she always lived and should live with me.
Customer: replied 7 months ago.
my question would be whether they can just like that state such things within the order if there was never application made by the father for such order and these proceedings were never regarding this matter only the father spending time with his dauyghter?
Expert:  Clare replied 7 months ago.

In fact the Court does indeed have the power to do this even if no Application has been made.

can you send me a copy of the Order - and does it say that the child lives with you at all other times - when she is not with her father?

Customer: replied 7 months ago.
Oh really?
Yes, I can send you the draft order now. I am just going through it and you will see my comments in bold in orange. I have not got to the end yet.
Yes, the order states that at other times the child (her name is Milena) lives with the mother. Does that mean anything?
Expert:  Clare replied 7 months ago.

Right

In that case the only difference between the Order that you thought you would get, and the Order that you have got is that each of you can take the child out of the oc**try DURING THE TIME SHE IS IN YOUR CARE without notifying the other - provided she is back in time for handover.

That in the end is the only difference.

Even if the Order had said that the child lived with you alone you could not take the child out of the country for 28 days as the time that she has to spend with her father would not allow this.

This is simply a matter of wording - it does not change the actual position - your daughter still resides with you and also spends time with her father.

The Holiday provision is in fact designed to ensure that your ex cannot prevent you from going to Poland - provided it is not for more than 21 days - and indeed if you wished to take her on a flying visit at the weekend you can still do so

I do understand that this is all confusing - and remain happy to look at the actual order if you would like me to

Customer: replied 7 months ago.
I apologise for a slight delay, I was on the phone. Do you still require a copy of the draft order ?
Expert:  Clare replied 7 months ago.

That is up to you I will happily review it for you if the above does not cover your queries

Customer: replied 7 months ago.
Thank you for the advise above.
Is it possible/allowed for me to apply in the future (for example once my daughter starts her nursery in a few months) to discharge or vary the order ?
I will send the draft order. I will delete the names perhaps as it may not be safe to send it online ?
Expert:  Clare replied 7 months ago.

It is possible to apply t vary it - but unless something unexpected happens not for at least a year

Customer: replied 7 months ago.
Thank you.
So if for example once my daughter starts nursery or pre school the midweek overnight contact may not work in her favour as the father lives outside of London and we are in SE London, would that be a good reason or enough to apply to vary the order ?
I won't be sending the draft order as a bit too long I think and you have answered my question above.
Expert:  Clare replied 7 months ago.

Yes that would indeed be a good reason!

Customer: replied 7 months ago.
Thank you. I suppose that I would be better to wait a few months and once the daughter starts her nursery, and if the midweek contact does not work, I then apply to vary the order rather than fighting now for something that I probably would not be able to get anyway.
Customer: replied 7 months ago.
Thank you very much for your advise today.
Customer: replied 7 months ago.
It was very helpful.
Expert:  Clare replied 7 months ago.

You are welcome - and that is an excellent plan

Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33810
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
Clare and other Family Law Specialists are ready to help you
Customer: replied 7 months ago.
Thank you.

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