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Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 35039
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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Does the mother of her 3 year old son have the right to prevent

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Does the mother of her 3 year old son have the right to prevent the father who has equal parental responsibility from seeing his son without explanation? The mother in question wanted the father (my nephew) to have their son living with him permanently back in November last year and has now decided that because their son is very distressed every time he has to go and stay with his mother and constantly asks for his dad, that she wants him back living with her and is refusing to allow his father to see him or even allow him to speak to his dad. We have heard from others that the little boy is refusing to speak to his mother and is asking for daddy every day. He is clearly distressed as he has a stronger bond with his father than his mother. We have also heard from his older sister age 5 that the mother's new boyfriend forced the children to sleep facing the wall and took all their toys away for a week. What can the father do? He has applied for mediation but the mother has 14 days to respond and is refusing to speak to the boy's father. He is also planning on applying for a residence order but in the meantime this mother is preventing him from seeing his son. She appears to be using their son as a 'weapon' and the new boyfriend also seems to have some control over her ie. her phone has mysteriously 'broken' recently and all messages are being sent from the boyfriend's phone. The boyfriend has also written some malicious comments on Facebook about the father telling him to 'get out of their lives' and move on. The father is becoming increasingly concerned and distressed about his son's well being and is desperate to see him. What should he do? Thank you.
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Does the child go to nursery?
Customer: replied 4 years ago.

Yes he does. However, all this week while he has been staying with his mother, he has not attended Nursery. His father has phoned and told Nursery the situation and asked them to monitor the child closely when he does attend. Apparently she took him this afternoon ( even though he is due to attend all day) and he had a bruise on the side of his fore head where he apparently fell down the stairs. Nursery asked her to complete forms detailing the incident.

Does she have the right - no
Can she physically do so - yes.
the father should make an urgent application for a Shared Residence Order base don the fact that for the last three months the child has lived with him.
I suggest applying for shared residence first as it is less aggressive in the eyes of the court
If the father seriously believes that the child is at physical risk then he can report his concerns to social Services.
However he should only do that if the concern is extreme as I am afraid some parents make malicious complaints and sometimes it is hard for the court to tell the difference.
Please ask if you need further details

Customer: replied 4 years ago.

Thank you for your reply. The situation has changed slightly since my original question, as the mother turned up at father's home last night with the son in pyjamas saying he could have him for the night as he wouldn't settle. He has a bruise on the side of his head and the 5 year old sister, who is currently at father's house, said she heard him fall down the stairs earlier in the week when mother was at work and boyfriend was about to pick up mother from work. She also said that boyfriend smacked the boy because he 'told a lie'.

The father is obviously now reluctant to let his son go back to the mother when she asks for him. Can he now refuse to hand him back without compromising his chance for residence order? As you say it is difficult to prove his safety is at risk, as much of the evidence has come from the 5 year old sister. Also I read in one of your other questions you advised that involving Social Services may affect his residence order. Is that correct? If so, why is that?

If he keeps the child then he needs to plan to make an immediate application for a Residence order first thing Monday Morning - and I mean in person at the court at 9.30 asking for an Urgent hearing to ensure the ongoing safety of the child (both children?)
Do not dismiss the evidence of a five year old - much of the evidence used to convict in the baby P case came from his five year old sister.
With regard to Social services as I said reporting matters to Social Services should only be done if there is a real risk as some parents in disputes do make false claims and it can sometimes be hard to tell the difference
Customer: replied 4 years ago.

Who would need to be present at the hearing? Would the mother or any witnesses need to be there? What evidence would the court need to make a judgement? How quickly would the Residence order be granted and would the mother's permission need to be sought? How does this differ from the shared Residence order and could this also be applied for immediately if my nephew wanted to go for a less aggressive solution? I don't think the father wants to prevent his son from seeing his mother but the new boyfriend seems to be dominating the situation. The boyfriend's father is currently serving a custodial sentence for murder. Would the court take this into consideration when deciding on the suitability of the new boyfriend as a potential 'carer' of the children?

The Court will list an Urgent hearing - within the week - which the mother will be given notice of.
Your nephew will ask for a Temporary (interim) Order that the child remains in his care until then.
The second hearing will still be relatively short - and hopefully a pattern of care will be agreed while the court - and CAFCASS - investigates what is actually happening
By all means he can make the application one for Shared Residence - indeed the court may see that as evidence of his good intentions
From all that you have said there are serious concerns which may well merit the involvement of Social Services
These websites may assist
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