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Ask Clare Your Own Question
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34886
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 have 2 children; 9 years and 13 years. They have been wards

Customer Question

I have 2 children; 9 years and 13 years. They have been wards of court since January 2012 . The court ordered the children reside with their mother and 11 days of each month with me from the 3rd friday of each month for 11 days. The holidays are shared equally. The judge suggested when I live the arrangement he would consider shared residence.
I made an application for shared residence and permission to travel with the Children on Holiday. My ex wife was allowed but I was not as she made allegations with no evidence that I was a flight risk. There was a hearing scheduled 20 March. She said she was unwell and had to vacated the hearing by consent and to date, 30 April has not provided a medical report despite endless reminders.
She served me with an application today to relocate the children from the UK to Spain to live with her and her boyfriend who they now have a children from since 10 April.
I will not allow my children to relocate.
My contact with the children ended on Monday 29 April. I suspected their mother was not in the UK but returned them to her care and she has arranged for her 20 year old niece to be with them. She has no plan to return this week I know. Her lawyers avoided answering the question if she is in the UK several times.
1. Should I go to court tomorrow exparte request an interim residence order as the mother is not available in the UK to care for the children and instead of them being with a niece of their mother who is 20 years old or some 3rd party carer unknown to me, they should be with their father. According to the Order the kids are next with me 17 May for 11 days. She has been away since at least 20 March, lied that she was ill to attend court and had 2 orders made against her this year to enforce the order of contact and hand over the children to me and on one occasion to return them to their schools in the UK as they were in spain with her after school had started.
2. Can I get an order allowing to travel with the children to hague countries only and for this to be stamped on the kids passports. I need to convince Judge as I am not a flight risk and want to travel with kids on holiday and to 2 family weddings this summer.
3.The kids school her. Will the court agree for them to live with her in Spain?
Submitted: 4 years ago.
Category: Family Law
Expert:  Clare replied 4 years ago.
Thank you for your question, I will do my best to assist you.
1. If you are certain that she is not in the country then you can make this application if you wish.
2. There is no way that this can be stamped in their passports - you will need to make a specific application to the court for each holiday OR get a residence order which means you can take them out of the country for up to 28 days at a time
3. There are a number of factors which the court considers when deciding on Relocation applications
The current leading case is here
If the children do not wish to move then her application is doomed from the start
I hope that this is of assistance - but feel free to ask for further clarification
Customer: replied 4 years ago.

Thank you

Reference your response to points 1,2 and 3 above, please advise.

Point 1: I am certain and have evidence she has not been in the country since 20 March 2013. He excuse may be that she had a child 10 April however it is not an excuse to leave your Children with a 3rd party and for your lawyer to mislead in correspondence about your whereabouts. I will go to court tomorrow exparte at 11am. What are my chances of i. returning the children to me on Friday 3 May, ii. obtaining an interim residence order, iii an order that if she leaves the jurisdiction in the future the kids will be cared for by me and not a third party. Please advise.

Point 2: I have applied for shared residence order. The hearing is scheduled 26 June however she has no put in a leave to remove application so I am not sure what will happen. I have not been able to travel with the children for 2 years simply because she alleges I am a flight risk. She may argue and the court may be afraid to allow me to travel with the children in case of abduction. I suggested stamping the passports as an idea . How else will the court have comfort apart from my word that the children will be returned.

Point 3: She has not requested a Cafcass report in her application for leave to remove. She has requested a social worked under section 7 or something to go to Spain to see where she is proposing they will go to school and live. The Cafcass report done 18 months ago clearly confirmed that it is in the best interest of the children that they remain in their current schools, that they love their schools and are very happy. Also time and time again my ex wife has told the court whether true or not that she is not planning to get married and the court recently took the view that I must maintain her as she is in a relationship that my not last. I would that bizarre given that she has a child from her boyfriend but said he will only support the child.

Please advise

Would the children need to be interviewed by CAFCASS again despite a report 18 months ago? My daughter is 13 and son 9. What if I insist on a report and she tells them to tell the officer that they want to move to Spain and would love to live there.




Expert:  Clare replied 4 years ago.
1. Without knowing all the details of your case I simply cannot assess the outcome. I woudl suggest that you ask for a time limited Interim Residence Order - and suggest that the Court allows for the matter to be listed within 24 hours for the children to be returned to her IF she attends in person .
You should certainly be able to get a Specific issue order that she has to be in the UK whilst the children are in her care
2. If you give full details of each trip and your undertaking to return you may find the court is likely to be more sympathetic to your position than before given her recent application.
Evidence of your financial ties to the UK will also help
3. Whatever she has requested it will be the CAFCASS officer who has already dealt with the children who will prepare this report - and the CAFCASS officer will want to know why the children have so suddenly changed their minds....