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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33276
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Dear sir/madam,I am the father on two children who live

Customer Question

Dear sir/madam, I am the father of two children who live with me under a residence order in the UK. The mother of the two children live in South Africa. I have recently submitted a C100 form (specific issue order) to change a part of the Consent Order (relating to contact) and have a date for a direction hearing. The respondent has responded to contest the order and submitted together a sworn affidavit with false statements and inaccurate information to mislead the court. Would it be necessary for me to submit an affidavit and skeleton argument with supporting evidence to assist the court in making a decision or should I wait for the court to decide what will be required at the directions hearing?

Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years 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 are the children and what changes have you asked for?
Clare
Customer: replied 2 years ago.

The children's ages are 10 years (boy) and 13 years (girl) years of age.


The agreement for contact was made in 2010 following a hague convention child abduction case which the mother withdrew at the final hearing



The changes I'm asking for is to remove a paragraph regarding the children traveling to South Africa to stay with their mother in summer holidays for four weeks and christmas or easter for two weeks annually.


 


Part of the agreement was I would pay for august travel and the mother would pay for the other. Since we made the agreement the mother has come to live and work in England twice and left twice to return to South Africa. The result being that contact arrangements have been changed on two occasions and when the mother decides she is going back to South Africa she threatens to enforce the order if I do not adhere to it. The children last traveled to South Africa in August 2012 when I sent them and paid for the travel.


The constant changes cause emotional and psychological stress on the children and the family home.


The mother has however replied with a sworn affidavit saying she has struggled to maintain contact with the children since the order was made. This is false. The mother has also requested that the court dismiss the application to change the order save costs.


 


Thus my question is should I submit a skeleton argument with supporting evidence to help the court make a decision at the directions hearing or shall I wait for the directions hearing and let the court decide what needs to happen next?

Expert:  Clare replied 2 years ago.
Hi
Did she exercise her right to contact whilst she was in the uK?
Clare
Customer: replied 2 years ago.

Hi Clare,


 


Yes we made an agreement that the children would spend every second weekend with her and this was the arrangement for the 11 months when she was in the UK in 2011/12 and the three months she was in the UK in 2013. I would take the children to where she was staying on the Friday afternoon and collect them on the Sunday evening.

Expert:  Clare replied 2 years ago.
Hi
In that case I am still uncertain what you believe that the court would or should change the order?
Clare
Customer: replied 2 years ago.

Hi Clare,


 


I am not understanding our question as to why I believe the court should change the order?


 


I am not willing for the children to travel to South Africa on a plane on unaccompanied for the following reasons:-


 


The mother has in recent conversations told the children they need to decide where they want to live. With her in South Africa or with me in the UK.


The mother has not given me a fixed address for where to send the children and then later sent a lawyers letter stating if I do not abide to the order she will take legal action.


The mother has not purchased tickets since 2010 when asked to do so and then left me with having to make arrangements for child care over the times they were meant to be with her and deal with the children being upset and disappointed.


The mother changes contact arrangements as and when she pleases.


On their first trip to South Africa the mother said she was going to keep the boy in South Africa because she was having ,medical checks done on him and she was only going to send the girl on her own. This was after they had stayed in South Africa for a period of five weeks.


I have tried to make the order work but with all the constant changes and with a mother that makes contact and then disappears again it is causing emotional damage to the children.


I am not trying to stop contact with the mother but I am not willing that my children to suffer the stress of travelling on a 11 hour flight alone and not know if they'll be coming back.


The reason I want to change the order is because it's not being kept to and I'd rather the mother comes here to see the children where I know they are safe.

Expert:  Clare replied 2 years ago.
Hi
Does the Order actually say the children should travel alone?
Clare
Customer: replied 2 years ago.

This is the precise wording,


 


The Defendant father to make the children herein available for direct staying contact with the Plaintiff mother in South Africa as follows:


A) for 4 weeks during each English summer school holidays on dates to be agreed, with the father to pay for and arrange the children's travel, the first visit to be in the summer 2010;


B) For 2 weeks during alternative Christmas and Easter school holidays on dates to be agreed, with the mother to pay for and arrange the children's travel, the first such visit to be at christmas 2010;


C) For 2010 only, additional staying contact for 2 weeks during the Easter school holidays on dates to be agreed, with the mother to pay for and arrange the children's travel.


 


It has always been assumed the children would travel unaccompanied as it would not be possible to accompany them.

Expert:  Clare replied 2 years ago.
Hi
Ah I see.
The courts will not make any decision or final Order at the first hearing unless you both agree - which clearly is unlikely to happen (do not let yourself be pushed into anything)
Your ex would find it hard to enforce an Order that she has not abided by - indeed the issue would not have arisen until Christmas - at which point she would have had to pay for the tickets - and provide an address
However you have made the application now so you need to be in a position to deal with the various issues.
There is no need to prepare a statement or a Skeleton argument at this stage.
However it would be useful to take with you a Chronology detailing what contact your ex has had and where.
You should be ready to point out that the changes required by your ex has led to a position where the children have not travelled alone at all and in the current climate you NO LONGER (remember those words) consider it appropriate for the children to travel alone.
Say that you are not prepared to withdraw your application as you believe that the arrangements do need to be reconsidered at this stage.
I hope that this is of assistance - please ask if you need further details
Clare

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