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UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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I have a shared residence order with my ex giving week by week

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I have a shared residence order with my ex giving week by week care of our children. the mother refuses to interact except in writing with regards XXXXX XXXXX arrangements. The order states for school holidays that these shall be by arrangement. My ex is now dictating when she will have the children and even though I tried to propose summer holiday care at the start of the year (Costs, part of a team that lands the slots early etc) she refused to engage and told me at the time she would ignore me and do what she want. is it worth me returning this to court for a variance or specific order? or do i just have to suck it up?
Hello and thanks for your question.

I need a bit more information to be able to answer:

What is the date of the shared residence order?
Was there a cafcass report prepared?
How old are the children?
What does the shared residence order say exactly about who the chiildren live with, each week or part of each week, and exactly what does the order say about holidays?
Customer: replied 4 years ago.
Order is just over 2 years old. Yes, carcass were involved and the kids (now 14 and 10) were clear on equal time. The order specifies that it is week by week from 1800 on a Friday until the following Friday with changes on holidays by agreement. Hope this helps provide an excellent answer

Hello again and thanks for the extra information.

It seems that the residence order was not specific about holidays – apart from saying that they must be agreed between you.

A shared residence order is often made by the court to emphasize that the parties share responsibilty for the children (rather than there being any particular concerns about the welfare of the children with either parent.), and it does tend to be made where the acrimony between the parents is the only real issue.

That means that it's a difficult case to take back to court, because the court is likely to take the view that if it's not working out, then it's most likely to be six-of-one and half-a-dozen-of- the-other. The case would revolve around you trying to prove how unreasonable your ex is being, and she would try to do the reverse.

As the order is now two years old, it's going to be relevant what happened with regard to holidays in the previous two years – whose suggestion(s) for the children's holidays in previous years was/were the one(s) that actually happened? How were those arrangements made? Was there bad feeling in previous years and how was that resolved, if at all? Ie what has been the pattern with regard to the decisions about holidays since the order was made? How have the two of you cooperated or not cooperated so far? What have been the children's reactions to holiday planning since the order was made?

But as you know, any court case concerning children will be decided on the basis of what is best for the children, and not on which parent shouts loudest. The court must consider the welfare checklist in section 1 of the Children Act 1989 – and one element is the wishes and feelings of the children. This counts for far more when there are no welfare concerns. The older the children are, the more weight the court will give to their views. From the age of 12, 13, 14 upwards, the court will take their views very seriously indeed. Even your 10 year old's view will be taken into account. The children's views are put to the court via the Cafcass report.

In your case, the welfare of the children is going to be damaged if:-

  • you and your ex are having rows about holidays and/or
  • the holiday plans are agreed so late that the holiday options become very limited and/or
  • the children's views are ignored without good reason and/or
  • either of you badmouth the other parent to the children.

If you decide to take it back to court, make sure that you emphasize that you have the children's interest at the forefront of your mind, and that you are not making this application purely to get back at your ex. Your application will need to be very detailed and specific about exactly what your holiday plans for the children are, and why this particular holiday will be better for the children than anything your ex has in mind.

If you can canvas the children on what holiday they would prefer – but WITHOUT putting any pressure on them to agree with you, and WITHOUT saying anything about your views about their mother – then you can add their views to your application to court.

However, as you also know, going to court is time-consuming, stressful and expensive, and the outcome cannot predicted. Legal aid is no longer available for this type of court application. I therefore recommend that you try mediation instead. Mediation is a round-the-table discussion with a trained and neutral mediator. Here's where to find a local family mediation service:-

Depending on the mediator, it may be possible to include the children in the mediation process – at least after the intial session with the two of you.

If mediation doesn't work or your ex refuses to attend, then you can make your application to court. The family court anyway now requires the parties to have attempted mediation before it will consider an application to court.

You may want to talk through your situation with a specialist family law solicitor. Here's where to find one:-

In the end, the decision whether or not to take your case back to court is up to you – but I hope I have given you food for thought.

I hope this helps and I wish you the best of luck.

Thanks and best wishes...

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