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Ask Clare Your Own Question
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34105
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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A friend is unable to leave the UK after visiting with

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Hello, a friend is unable to leave the UK after visiting with her child and the father coming an ex parte hearing resulting in or order to retain the child in the UK. the court order says that the mother can be heard on 48 hours notice, but the judge keeps. refusing to honor his own order and wants to wait weeks to do an initial hearing. the mother has been trying to leave UK since January, was there with the child since September. Father has no parental responsibility rights. unmarried at time of birth, never granted by a court since, first time he has seen the 3 yr old child. so the mother wants to use the 48 notice hearing to show the child was not habitually there. child and mother are citizens of other country, not UK. so, how can the judge ignore the 48 hour notice of hearing allowed by the mother, and should she even stay to do this court case, considering there is no jurisdiction, she has no help there, cannot afford it and is confused by the law and language...
Submitted: 1 year ago.
Category: Law
Expert:  Clare replied 1 year ago.
HiThank you for your questionMy name is ***** ***** do my best to help you but I need some further information first.Could you explain a little more about what has actually happened please
Customer: replied 1 year ago.
I explained, your answer appears to be an automatic reply.
Customer: replied 1 year ago.
she can also get proof she has been trying to leave since January because she asked the embassy to repatriate her.and the child. due to lack of money for the change in return ticket.
Expert:  Clare replied 1 year ago.
No it was not an automatic reply - but your question did not give enough information to get a grasp on the situation - but that has been solved with the copy of the StatementFor clarity - has your friend actually made a formal application - or just sent her Statement to the Court?
Customer: replied 1 year ago.
She is outside of London, and the court gave her a clerk as a contact to handle scheduling and communication with the judge. I'll copy you the email.
Customer: replied 1 year ago.
The statement is missing the one additional evidence of her application to repatriate with the Uruguayan embassy from January (she wouldn't be a habitual resident given she has been trying to leave). We are waiting on that from the embassy.
Customer: replied 1 year ago.
attached is the clerk reply after her asking to be heard
Customer: replied 1 year ago.
I think having transcripts of the previous ex parte hearing, and not letting the process proceed for the FHDRA is best. She should show that there is no jurisdiction and not let the process move forward as-if there was. But she really needs legal help, and appears there are no free options for a foreigner there in receiving help.
Customer: replied 1 year ago.
She was advised by a latin american woman's support group there to leave, she has the right to do so for up to a month they said, get advice, money, and a plan for going back to do the case later. Or see if Uruguay would protect them here.
Customer: replied 1 year ago.
More directly answering your question: No, she asked the clerk for the 48 hour notice. How does a formal application happen? And she can't afford to go to London for each of these small events, money is tight since she is in overstay and didn't have the means to stay this long.
Expert:  Clare replied 1 year ago.
When was the original return date - the one she had the ticket for?
Customer: replied 1 year ago.
Her original return was 2 months after the start date (Sept 25 to Nov 25 more or less). She wanted to extend to look at opportunities for work there, Visa options, etc. So she asked the sister to change or extend the ticket. The Sister of her ex was to leave it open so it could be changed later. Instead it was cancelled, i don't think that was an intentional act, more of just the option the sister though was best. In January she was then ready to leave, and it was too expensive for the tickets. So she asked the embassy I think on January 28th for help to leave. That was interrupted by the March 24 order which was the last day of her Visa being valid.
Customer: replied 1 year ago.
She was wishy washy on whether to try and stay and get work there, or return during the time, changed her mind weekly.
Expert:  Clare replied 1 year ago.
That is unfortunate.What contact has the father had with the child since the child has been in the UK?
Expert:  Clare replied 1 year ago.
Is he currently paying any child maintenance?
Customer: replied 1 year ago.
They stayed with him in his house for ?N? months at the start of the visit (asking her how many months is N). He tossed them out at some point, there were problems with conditions in the house, arguments over him taking the child to pubs, and him using drugs while they were there. So those arguments led to their departure. He had no contact with the child since birth before this visit. Side note: He gave her free rights of travel when he approved their Uruguayan passport (Uruguay requires that from the other parent to issue the passport).
Customer: replied 1 year ago.
4 months in his house (she answered)
Customer: replied 1 year ago.
"... because he lock me out and throw me out at 22:30 in London with a 3 year old child"
Customer: replied 1 year ago.
its messy, yes.
Expert:  Clare replied 1 year ago.
When did he throw her out and what contact has he had with the child since then?What income does he have? Does he own his own home?
Customer: replied 1 year ago.
"Is he currently paying any child maintenance?" I asked this, I believe it was NO... I'm asking again because it was midstream of another conversation and it isn't in our chat log. (she is offline for a moment, intermittent internet)
Customer: replied 1 year ago.
(getting her back online for your other questions)My notes say that she tried to leave when he threw her out, asked the embassy for help, and then through some help group she found a place to stay outside the city, and has been there since, he has not seen the child and doesn't know where she is staying.I'll be back with the other questions answered.
Customer: replied 1 year ago.
"When did he throw her out?" late January, around the 4 month mark
Expert:  Clare replied 1 year ago.
And the house position?
Customer: replied 1 year ago.
(waiting for these answers from her:"Is he currently paying any child maintenance?"
"When did he throw her out and what contact has he had with the child since then?"
"What income does he have?"
"Does he own his own home?")
Customer: replied 1 year ago.
He has not paid child maintenance.He did not ask for contact since throwing them out. Nor has had any.He is not working, living off some payment from the government.It is a "council flat" (i don't know what that is, maybe you do)
Expert:  Clare replied 1 year ago.
Has your friend ever spoken to this organisation?http://www.reunite.org/pages/advice_line.asp
Customer: replied 1 year ago.
No, she has not, I forwarded the contact information.
Expert:  Clare replied 1 year ago.
OkI can give you an overview which should help you help your friend in understanding what is happening.For clarity however - has she now got a way of getting home?
Customer: replied 1 year ago.
Yes, someone is willing to buy her and the child a ticket now, if she can safely leave. The question is if the order really blocks her or not from doing so. Or, if she must do the case, an overview of strategy or the situation.
Customer: replied 1 year ago.
Need anything else from me?
Expert:  Clare replied 1 year ago.
How was her ex aware that she intended to return to her home country?
Customer: replied 1 year ago.
Yes she told him around the time of being kicked out. And he recently sent her a message saying he was worried if/when she returned to Uruguay her life wouldn't be so good, so they should talk and try to work something out. So he is still aware as of the last few days of her desire/intent to leave.
Customer: replied 1 year ago.
I think during the stay she flipped from "exploring options in the UK" to "staying if there is a way" to "ok, will stay if there is a plan (the plan from him was for her to stay illegally for 7 years to get amnesty later or similar)" to "wait, that isn't a good plan" to "i'm kicked out, this is crazy, definitely not staying" to "maybe I can stay if I get a job and a new visa" to "no, this is crazy, going home"... like I said before, messy.
Customer: replied 1 year ago.
she arrived with the premise that there might be: opportunity in the UK and the ability to stay legally. And explored those, finding neither were true for now.
Customer: replied 1 year ago.
I think there is likely a collection of verbal, whatsapp, Facebook, email combination going in every direction.
Customer: replied 1 year ago.
I'm wondering if she shouldn't just leave and move the fight to Uruguay. She is basically being pulled into a trap she cannot afford to deal with, in a case that might be stacked against her, and that Uruguay would easily view in her favor. But I don't know the real power of that court order, other than the judge doesn't appear to follow it either by granting the 48 hour notice hearing. So they leave her in a hardship position, retained in another country without means.
Customer: replied 1 year ago.
In Canada, we would have walked into court and asked for an emergency hearing if ignored for the 48 hour notice, and also a removal of the judge for not allowing it. In Uruguay, they would have allowed the hearing at the first date a judge was available, which would be 48 hours or very soon after.
Customer: replied 1 year ago.
is the overview still pending for today? I added the phone call to cover last questions and to improve the pay rate.
Customer: replied 1 year ago.
This was marked urgent due to the upcoming timing of the case. Any chance on the answer today?
Expert:  Clare replied 1 year ago.
My apologies for the delayI am not sure if you realise that the site charges extra for a phone call - although it is kind of you to think of itThe major problem is of course that there are two (indeed three with yours) Legal systems involved which are all different - even the two which you might assume were somewhat similar (Uk and Canada)One of the first points I need to make is that under no circumstances should your friend try and leave the Uk with the Child while the Order is in place.Doing so would be Child Abduction and could lead to her being held in prison.
Expert:  Clare replied 1 year ago.
The second is that in fact the Prohibited Steps order ( the one which means she cannot remove the child from the UK) cannot be looked at separately from the issue of Contact - they have ALL got to be dealt with - it is only a matter of when.
Expert:  Clare replied 1 year ago.
Then there is the issue of Court Time - as in when there is a Judge available.Given that there was a hearing scheduled for 20th April the only way that your friend could have persuaded the court to lift the Order is if she had produced the tickets with a fixed date which had been booked weeks before.
Expert:  Clare replied 1 year ago.
So that is how we got to where we are - what we need to do is help her plan the next steps.There will need to be a two part approach.The first is the court approach.Your friend is arguing that the Court does not have Jurisdiction on the grounds that the child is habitually resident in UruguayThe flaw in that is that the child has in fact been resident in the UK since September and it seems that there was certainly some plans that the mother and child should stay.On that basis the UK court DOES have Jurisdiction and can determine what is best for the child.What your friend needs to say is that whilst she accepts that the Uk Court potentially Jurisdiction on the basis that the child has been here for more than six months the fact is that for the last three months she has been trying to raise funds to return home.She needs to file a form C2http://hmctsformfinder.justice.gov.uk/courtfinder/forms/c002-eng.pdfasking for leave (permission) to remove the child from England and Wales to return home.This will be on the basis that 1. The mother has no right to remain2. The mother has no financial standing her but would have at home3.All her family support is at homeShe also needs to redraft her statement giving a clearer account of her relationship with the father and the life of the child to date and why she and her child need to return home.There is a guide herehttp://www.familylawquestions.co.uk/page9/page12/page19/and I am happy to check it over.She must offer some form of ongoing contact - via skype or face time - or fac eto face if dad goes to UraguayThere is however a second strand - and to an extent this is about frightening the ex into agreeing to her going home.If she stays then she will need somewhere to live - and the obvious answer is for her and the child to live in his property and for him to leavehe will say that he cannot do this - but he can since she was his partner and the child is his.She needs to state that if she has to remain she will apply for an Occupation Order allowing her and the child to live there (and forcing him to leave)She should also say that she will need financial support and that her ex will need to share his state benefits with herI appreciate that she does not wish to say - but including this should hopefully make the father consider very carefully what he is doing.I hope that this helpsClare
Clare and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Wow, I like the strategy, and if we want ongoing interaction with you, how does that continue?
Customer: replied 1 year ago.
The court asked for a statement beforehand, should we present it on the date, or ahead to the clerk the day before?
Customer: replied 1 year ago.
(my request for ongoing interaction is obviously for paid advice)
Customer: replied 1 year ago.
I just heard the father has a 12 year old daughter that also lives with him. (important detail I know, the child's mom died in 2013, child lives with father) Likely changes the threat level a bit of taking his home. But still the monetary support and going hard on having him pay their upkeep in one way or another is the best bet.
Customer: replied 1 year ago.
"He was married with her And he get her house council flat when she die" about the ex in 2013. It turns out he was married to the other woman when he got the woman of this story pregnant. Separated but married.
Customer: replied 1 year ago.
I will work with her on the statement this weekend, and also include in the history his drug use, that showing up on a test cannot be good for him. Will send it if you have time for review. I will see how to issue a new question directly for you, don't think I can drag this one out too much longer, you have gone into a lot of detail already.
Expert:  Clare replied 1 year ago.
Ok - the older child does change thingsHow did they actually meet?
Customer: replied 1 year ago.
They met while he was living/working in Buenos Aires, and her in Montevideo. He was separated from his wife at the time. This was 2008, until 2010. My friend visited him in the UK, got pregnant there, returned to Uruguay in 2012 to have the baby here, the father was aware of this. fine with the idea. He came to visit before the baby was born, but left a few days before the due date (baby was born 1 day early, Jan 2013). Then until this visit, no contact with the child.
Expert:  Clare replied 1 year ago.
Ok.The possibility of your friend moving in is not an option given the 13 year old BUT in a way that strengthens her case that she should be allowed to return homeDo not bother with the drugs - they add nothing to the case.Concentrate on calm practicality - if she cannot go home with her child exactly WHO is meant to pay her bills given that she cannot work!
Customer: replied 1 year ago.
Ok, here is a draft statement attached. It should be wrapped up tomorrow night (18th) so it can be sent to the clerk and other party before the 19th to have at least a days notice. This was written after interview with my friend for all of the details, she has to confirm it and adjust it to her comfort, it is translated from her rougher spanish version.
Customer: replied 1 year ago.
updated to a new version. feedback welcome.
Expert:  Clare replied 1 year ago.
Overall an incredibly good job.Small amendments to be made.First page - remove the date from the topParagraph 3Has the process for a Uk passport begun? Why?Para 4Should begin " The relationship between the applicant and I started in 2008 when I met him.....Para 7 "the idea of MY returning to the UK...."Para 11last sentence should start"It was also to allow me to consider...."Para 12"earlier" not "early"Para 13We need more about what actually happened that night
Expert:  Clare replied 1 year ago.
Para 22Remove everything after the first sentence
Customer: replied 1 year ago.
Thanks. One person said to show up with this at court, but my personal experience is that my friend should send it to the clerk ahead of time, no surprises, time for it to be in the hands of the other party and judge, etc.At court, they will likely offer her a helper, also again, my experience is that they summarize a lot and don't always handle complex cases well. Not sure how much she should ask to speak vs. the helper. Or if they can really just force a reading of the statement jaja. Everyone trying to go and help her on the day I don't think will handle the complexity well, or stay on topic.The woman's group wants to focus on domestic violence which is about the mother, not the child, so is a distraction, and she is a forceful woman, so my friend needs to tell her strongly to stay out of it unless asked by the judge that specific topic. ANd just provide an affidavit if she wants
Customer: replied 1 year ago.
Q. Has the process for a Uk passport begun? Why?
A. No, error in the paragraph, changed already.Paragraph 13, I got more from a translation of the letter written to the embassy, attached. So I am doing another interview with my friend to flush out details.Paragraph 22, I was being explicit more as a message to the applicant, wanting him to stew on that paragraph for the day and a half before the case. still remove the rest, or you have a tighter scary version for him to read?
Customer: replied 1 year ago.
(maybe this is the one payoff of having been divorced and doing a fight for my children, is that I can help people write statements... oh and that my kids are happy, that worked out too)
Customer: replied 1 year ago.
updated doc here, corrections and paragraph 13..16 is more detail of the night she was locked out. paragraph 21 indicates another police action of helping her collect her things. 22 slight change and split out 23 into its own line.update 2 attached
Expert:  Clare replied 1 year ago.
Excellent - but do take out the "message" in paragraph 22
Customer: replied 1 year ago.
ok, message removed from latest #27 (it moved)
Expert:  Clare replied 1 year ago.
Well done
Customer: replied 1 year ago.
just for reference, near final and all exhibits attached. (labelled update 4) This is 7 y poco mas pages of statement, 43 of exhibits. I feel like it is a huge pile. So likely unless the judge is really bored, he won't get through it all. It will be sent to the clerk tonight, so they'll have all day to propagate it to the other party and most of the documents he should already be aware of other than her personal testimony.any reason to NOT send it to the clerk ahead of time?
Customer: replied 1 year ago.
We just did form FM1. For CB1 it appears she should be the applicant and he the respondent. So does that meant he statement needs everything reversed as to who is who? or do they retain the roles from the start of the case who is the applicant and who is the respondent?
Expert:  Clare replied 1 year ago.
NO get it off as soon as possible.Why are you completing an FM1?
Customer: replied 1 year ago.
The C2 says you need to do an FM1 first. Basically just claimed an exemption in that form. It is attached.Bigger question is who is applicant / who is respondent since this is a new application. The statement still has the other party as applicant and my friend as respondent. But here the C2 says it should be the other way. Do they need to be reversed in the statement and the C2 match, so everything changed to her as applicant, him as respondent?
Expert:  Clare replied 1 year ago.
No this is not a form you need to doJust do the C2
Customer: replied 1 year ago.
ok, so my question about the C2 and the statement previously sent above. Applicant is now my friend, and respondent is the father? Reverse of the original order? Therefore C2 is her as applicant, and the statement should be changed to match yes?
Expert:  Clare replied 1 year ago.
NO need to change the Statement - The C2 will simply stand alone
Customer: replied 1 year ago.
ok.
Customer: replied 1 year ago.
so the statement is separate from the C2, and the C2 should have a small version of the things being requested. And the statement will just be filed at same time.
Customer: replied 1 year ago.
applying for a Specific Issue Order
Expert:  Clare replied 1 year ago.
The C@ id filled in to specifically ask the court for permission to take the child home!
Expert:  Clare replied 1 year ago.
Bad typing - sorry
Customer: replied 1 year ago.
So ONLY the issue of return, nothing about support or other items asked for in the second statement
Expert:  Clare replied 1 year ago.
Correct - all she wants is to go home!
Customer: replied 1 year ago.
more or less attached C2. referenced previous statements already made. and short summary.
Expert:  Clare replied 1 year ago.
Excellent The other thing that will help her is if you prepare a simple "cheat sheet" she can refer to so that she doesn't miss anything she wishes to say in court
Customer: replied 1 year ago.
good idea, thanks!
Customer: replied 1 year ago.
great. the pile of docs are in her hands, she is printing to file first thing in morning, and email the clerk the larger second statement so hopefully saves printing of that one. if not, fun for her in the morning. thanks again. in a day and a half should know more. My bet: some further delay.
Customer: replied 1 year ago.
final to-be-filed versions attached for reference.
Customer: replied 1 year ago.
have a good week, thanks for all the help!
Expert:  Clare replied 1 year ago.
Dp please let me know the outcome Please also tell her that if it doe snot go the way it should then we will find someone to represent her for an appeal
Customer: replied 1 year ago.
thanks Clare.
Expert:  Clare replied 1 year ago.
You are welcome
Customer: replied 1 year ago.
The Hague Convention central authority in Uruguay recommended hat we clarify with the judge, the comment about jurisdiction. This would be done with a 3rd statement (attached). Also a prepared statement before anything proceeds that puts the judge on notice (attached draft). And an application be made to the Hague Convention central authority in the UK (attached, exhibits omitted since they are same as before). Any thoughts on this?
Customer: replied 1 year ago.
My friend could not file the C2, they required like GBP 250 or more for an application, she does not have the money for that. There is no legal aid, she has no access to public funds. The other party has access and can do anything free, she cannot.
Customer: replied 1 year ago.
The judge is being changed tomorrow to "a randomly selected new judge"
Expert:  Clare replied 1 year ago.
All of those are good - and render the C2 unnecessary
Customer: replied 1 year ago.
The Hague Convention central authority assigned (or one agreed) a solicitor today to help with the Hague Convention return application, not sure if they help with local court at all, but my friend will try to get in contact with the new solicitor before entering court today just in case there is some advice. And she will notify the judge this assignment happened in case they shouldn't proceed without that first conversation. That means at least the application wasn't horribly done, but I think there is likely another round of the solicitor helping to prove the application has merit and then move forward.
Customer: replied 1 year ago.
Ok, good, sounds like she will stall the local case and take a new one in the meantime. I think we are now in good hands, and doesn't seem like our previous filings caused any trouble, a little wording that is weak and potentially dangerous but explainable. I'll let you know how it goes, if you are interested. I'm glad she has formal help now. Ufffff, busy last few days!
Expert:  Clare replied 1 year ago.
I am so very very pleased to hear this - although I had someone half persuaded to assist!Do please let me know
Customer: replied 1 year ago.
Other party saw the immigration letter he wrote, and his solicitor immediately said that they DID understand she was there only for a TEMPORARY visit and were not committing a fraud/crime with immigration. I guess that came to mind when he saw she had the document in hand. Other party has skype contact every other day. Case delayed to special judge because of jurisdiction questions until May. Likely it will get derailed tomorrow by the new solicitor with a higher court filing.
Expert:  Clare replied 1 year ago.
Yes - I want her home as soon as possible so please let me know
Customer: replied 1 year ago.
Higher court app is to be heard in first days of May, so will know more then.
Expert:  Clare replied 1 year ago.
Not too long then - but long enough poor girl