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Ask Clare Your Own Question

Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33030
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 3 weeks ago. My former partner has

Customer Question

Hi, I had a final hearing 3 weeks ago. My former partner has applied for Child Arrangements Order to spend regular time with her, I applied for Child Arrangements Order that the child continues to live with me. The Judge did not determine on the "live with" issue (in my view, the Order is now referred to the Judge due to the disagreement in terms of the wording).
Am I correct that in this case the Status Quo should be preserved and the Final Order should state what the other previous Orders were which is that the child is living with the mother (me)?Can the Judge now (we're going to send written submissions - a letter- to the Judge) change hers judgement, and for example if she did not determine on the issue of "live with" at the hearing but can she change her mind now after receiving both parties submissions?
Submitted: 1 month ago.
Category: Family Law
Customer: replied 1 month ago.
When I say submissions, it will be a letter to the Judge done by both parties, and stating our comments/disagreements within the draft Order. The submissions/letter will be regarding the Order and the judgement from the final hearing. Nothing else.
Expert:  Clare replied 1 month 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 is the current wording of the draft order?

Customer: replied 1 month ago.
Hi Clare,
Thank you for your response.
The current wording within the draft Order is throughout the entire Order that my daughter "lives with the father" (as well as with me) whilst it should be that the child has "contact/spend time with the father".
There are also some other issues within the draft Order such as they try to state that the child will be spending time with "other person" which I disagree as this was also never determined by the Judge. I don't understand who are these "other persons". I think that the father of my daughter simply has no time for her as he's a businessman in the City, and therefore tries to make sure that he will be ok to leave the child with other people.I now must write a letter (the same as the other party) with my arguments re the draft Order. I spoke to Thomas Judge Solicitor last night here online and I asked him if he'd be able to help me with that letter to the Judge. I just submitted a separate question on here and requested him but still awaiting for it to be reviewed I think.How long such letter to the Judge should normally be to be effective?
I suppose I should attach a draft Order with my amendments ? Anything else? Perhaps a letter sent to his lawyer and a response from them re the draft Order?
Expert:  Clare replied 1 month ago.

What is your objection to the wording (not uncommon under the newest rules)

Customer: replied 1 month ago.
Hi, it's that the father of my daughter is clearly not her primary carer and if the Order states that she lives with him for example every Wednesday and on alternate weekends, it'd mean that he is also a primary carer I suppose.
His application was for contact arrangements and not living arrangements. It was to spend regular time with daughter. My application was for her to continue to live with me.
Customer: replied 1 month ago.
It'd mean that we have share care and in my understanding, shared care only works where separated parents have fairly good relationship in order to be able for example to make joint decisions for the sake of the child. Also, we live far from each other, he said in his statement that he didn't even know me well when our daughter was conceived (it was a lie but still), we argue about every little thing related to our daughter and she is only 18 months old. His lawyers confirmed very recently (end of April 2016) that they don't see a problem why I was trying to clarify with them that the child lives with me as it was already agreed between the parties that she does and spends time with her father. Suddenly after him finding out that if the Order states that the child lives with me, I can leave jurisdiction for up to 28 days, and because I am not British, he now wants to put that "live with" word in the Final Order. He never wanted our daughter to live with him and I am concerned what are his intentions. Therefore, I really believe that the child should live with me as she always did and spend regular time with her father.
Customer: replied 1 month ago.
I have a draft letter that I must send tomorrow to Court. The other party will do the same. It is regarding the wording and some other matters within the draft Order that we disagree on. It's 3,5 pages long. I know that it's far too long. I also don't know the right format etc that should be used. Would you be able to change that letter for me if I attach it here as a file? No problem for extra payment of course.
I would like it to be shortened, and perhaps changed a bit so that it is hopefully effective. Would you be able to do that for me ?
I send my other new question on here with regards ***** ***** but still awaiting a response, and I don't have much time left.
Expert:  Clare replied 1 month ago.

In fact the term "primary carer" has no relevance in family law and in fact it is now usual in such cases for an Order to say that the child "lives with" one parent for such and such a period and "lives with" the other parent the rest of the time.

This is because the aim is to show that both parents have equal Parental Responsibility

This is a matter of semantics only and makes no difference whatsoever to what the Order means and frankly the court is going to view your challenging it as further evidence of your "being difficult"

The only legal difference 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.

This is NOT about shared care - whether he sees the child for a few hours once a week; or for one night a week and alternate weekends, or for 50% of the time it s ALL viewed as shared care and you will need to work towards being able to parent together.

If there are important issues with the draft order then concentrate on the real issues - not this non issue - as otherwise they will get lost as the Judge will simply view you as being petty

I am certainly willing to look at the letter for you - but it will be with that approach in mind

Customer: replied 1 month ago.
Thank you for this. Yes, I agree with this but I think only if the both parents can work together towards the best interest of the child, Unfortunately, in our case it has been extremely bad in the past 2,5 years.
I will attach my letter now, and if you could please have a look, shorten it and change where needed please.
I do get point re the important issues, however the points raised within my letter has been discussed/determined or not determined in Court. That's why there are disagreements as the Judges' conclusion was different to what the other party states within the draft Order.
Please let me know what would be the extra cost for you producing/amending my letter.
Expert:  Clare replied 1 month ago.

I am sorry but whether the parents can work together or not doe snot change anything in terms of the Order

Indeed the fact is that if they could work together there would be no order

Expert:  Clare replied 1 month ago.

If you send the Draft Order and the letter I will deal with them fresh in the morning

Customer: replied 1 month ago.
I suppose that's totally correct.
With the "living arrangements"/"live with" issue the Judge specifically said that she Cancel them both at this stage so I understand that the Status Quo should be preserved in this case and the Order should say that the child is living with the mother. All previous Orders state the same.
To be honest, if possible, I would send only the letter as what I say in the letter it was already raised with the other party and I can't change anything even if it wrong.
I just need help in terms of making this letter to look as it should to be placed before the Judge. You'll probably disagree with some of the points raised, however please still try to make it look good if you can.
Will attach the file now.
Customer: replied 1 month ago.
Not too sure if you received the letter. It's showing it's attached but can't see being sent.
Customer: replied 1 month ago.
Ok, it's fine now.
Expert:  Clare replied 1 month ago.

Many of the points that you raise make no sense without seeing the draft order.

Others involve you trying to reopen the case

I am happy to help turn the letter into something that the Judge will take notice of - but I need to see the draft Order so that I can suggest meaningful changes

Customer: replied 1 month ago.
Ok let me send you the draft Order.
Customer: replied 1 month ago.
I am not sure how this thing works and if it's safe to post documents online so just in case I took the names out of the Order.
Please see attached.
Customer: replied 1 month ago.
I should add that all the red bits within the draft Order are the points I added or amended according to my noted from the hearing.
Expert:  Clare replied 1 month ago.

Which changes are of priority for you?

Customer: replied 1 month ago.
Hi, the main will be the "live with" terminology. However, all the other are quite important as well as for example the "21 days" provision the Judge said in short term and the long term she would not stand in a way if I wanted to go home with daughter for longer;
Then "Summer holidays" it was agreed and determined by the Judge 14 days. He added another 7.
Very important as well his written consent for daughter's Polish passport. He agreed in Court and the Judge said that this is sensible as daughter is of both heritages. He's refusing now sending text message suggesting that suddenly it is so "urgent" to me. He already accused me once of an attempt to abduct our daughter, and then had to pay me back £2000 for unfolded allegations;
"Joint bigger decisions" is so hard because I do realise that we should be making them togetgher, but the last 2,5 years we have been so bad and there was s7 report that our relationship is very heated and the emotional impact it may have on the child etc;
"Collection/return of the child" from/to me, the Judge also said that on occasions when he has an emergency etc his parents could be doing this but he wants to state in the Order that they'll be responsible for it which isn't good for me. His mother came to me when I got pregnant and said how bad she thought of me and his father was filming me when I was handing over my daughter to his son, they are not nice towards me;
"preferable midweek overnight " the Judge only said that I should let him know once I have my uni schedule 7 days prior. He now wants to have an Order that every 3 months (every tem) I must provide him with evidence from the university. That's not acceptable;
"Christmas" I probably could skip but then they want to highlight that the daughter spent last year solely with me and he was not allowed to see her which is a lie because there is an Order from 21.12.15 that he had our child 2 days over Christmas 2015 including Boxing Day so they want to lie within the Order.
Expert:  Clare replied 1 month ago.

I have redone the letter :_

September 5, 2016

Dear Sir

Re : Case no xxxxx in the matter of M xxxxx

I am writing with regards ***** ***** Final Hearing of the above matter on 11.8.16

The Representatives for the Applicant father (Paul) have produced a draft Order that I am not able to agree. I am not represented and the Direct Access Barrister I used is not responding my attempts to ocntact him/her

I took precise notes whilst the Judge was summing up and I do not believe that the wording within the draft Order reflects what the Judge said.

Throughout the draft it refers to the child (M) “living with” Paul instead of having contact with him. Whilst I understand that this is a modern practise it was NOT the wording used by the Judge and it is not wording that I am comfortable with.

Through out the proceedings Paul’s solicitors have made it clear that it is accepted that M lives with me and that this has never been in doubt - and I would feel more secure if this is what the Order says.

Indeed I recall that the words used in the summing up regarding the mid week contact were:

“One midweek is fine because it keeps the contact with father and with the combination with the weekends it is a perfect, acceptable and sensible contact”.

I also have concerns with regard to the matters detailed under “Mothers Position”at (b). It is unrealistic to state that I will not enrol M in any school without Paul’s written consent. I will certainly consult with Paul and discuss matters with him well in advance, but this was not an Order made by the Court and should not be listed as if it were.

Moving on to specific paragraphs

1 c. There was no requirement that I provide Paul with written evidence of my schedule just that I notify him as soon as I know - which i am happy to do

1 d. I have a difficult relationship with Paul’s parents and would prefer the prodding “Or in an emergency the Paternal Grandparents” to establish that in general terms it shoudl be Paul - which will help him establish a relationship with the school

2. the Polish Embassy requires not only that Paul signs the forms - but that he also provides his written consent

3. This refers to 21 days in Poland. This should be subject to the addition that after 2017 it should be 28 rather than 21 days in accordance with the comment of the Judge (I lost this - please put it in)

9. I would ask that M returns to me on Boxing day since she did spend Boxing day with her father last year and it seems right that these alternate.

16. The move to 14 days in one block is scheduled for 2019 not 2018. There was also no reference in the Judgement to Paul have an extra 7 days in the Summer holidays - not least because he does not have sufficient annual leave

The above points are the main issues within the enclosed draft Order. The other smaller points are also being highlighted in red with comments next to some of the paragraphs.

I have tried to address everything with Paul’s solicitor first. My Direct Access Counsel wrote to Paul’s solicitor and his Counsel on 22.8.16 explaining that the draft Order does not reflect what Your Honours conclusion was at the hearing. I was very disappointed to receive a response from Paul’s solicitor on 23.8.16 that I appeared to “retreat from matters that either were concerned by you [me] in court or were determined by the judge”, and that I “raised objections for the first time to matters that have already been dealt with “suggesting that the both Counsel have been in communication a while and no objections were raised until the 22.8.16.

I viewed every single e-mail that both Counsel exchanged. At no point these matters were agreed as the other party suggests. Both Counsel were very busy travelling and in meetings regularly and communicated properly with regards ***** ***** Order for only about 3 working days prior to my Counsel e-mail was sent to them on 22.8.16. Therefore, their ‘allegations’ are inappropriate and unnecessary. I did not withdraw from anything that I agreed to or it was concluded by the Judge. I have made very precise notes from the Judges’ conclusion during the hearing, and the above terminologies should be removed from the Order.

I recognise the critical importance of Pauls’ role in Milena’s life. The same with parental Grandparents. I will ALWAYS promote my daughter’s regular contact with them. I however find that Paul manipulates situations to attempt to prove his point and to get things his way, to the detriment of Milena.

I was hoping to get into an amicable agreement with Paul or/and his solicitors, and it is very unfortunate that the only response I received from his lawyer was that “these amendments will not be agreed “.

The interest of Milena would be best served by the arrangements that have always been in place, namely that she lives with her mother and have regular contact with her father.

I humbly ask the Court to please make decisions in terms of the Final Order based on a long history, facts and what is best for my daughter.

Expert:  Clare replied 1 month ago.

Do deal with your amendments to the Order -

Page 1 - this is standard wording - reinstate it

Page 2 - great changes

Page 3 - Pushing it but worth trying

Page 4 -remove your additional " it is Ordered that"

Page 5 - The only place you will be able to spend 21 or eventually 28 days is Poland. You can spend 20 days elsewhere - but at this stage re-instate the Poland part - it i snot reasonable to seek to spend such long blocks elsewhere whilst your daughter is so young

Pages 6,7 and 8 are ok - not great but worth a try

Page 9 father; day is always a Sunday - there is no need for the extra wording

Everything else - fine

Customer: replied 1 month ago.
Thank you Clare.
Unfortunately, I had to submit my submissions yesterday at 4:30 pm.
However, I will save your comments in case I need a similar letter in the future.
Expert:  Clare replied 1 month ago.

Since you are acting for yourself you are able to file the amended letter and Order today.

It will make it easier for the Judge to check the issues and should increase the chances of your succeeding

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