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Hi, I’m Lea and I will be assisting you with your query today.
I am very sorry to hear about your dilemma, but will do my best to provide you with advice and guidance on what to do next. Can you explain a bit more about why you think you are breaching the order and how?
The following is useful info to assist you with the site:
How old are the children?
When was the order made that put 50/50 care into place?
What reason is the child giving for refusing to go?
As there is an order you have to comply with it by making the boys available, as you have been doing, but making them available does not mean forcing them. And given that they are literally objecting to being taken to their father's home, it is quite clear that for whatever reason, the arrangement no longer suits them. As such, and especially given your concerns about the father's conduct in front of the children, it is inherent on you to apply to the court for a variation of the order.
I'd suggest that you ask for the children to live with you and to spend time with the father alternate weekends, from Friday after school to Monday return to school, and perhaps an overnight from school return to school in the alternate week - though it is clear you already have pick ups from school, and the boys are old enough to evade that of their own accord, so it may be something to raise in court. Perhaps involve the boys in a discussion about where they'd like to be collected from by their father. At 10, almost 11, CAFCASS will likely be ordered to speak to the boys to find out what their wishes and feelings are - and whilst not determinative to the court, the court will take their views into consideration.
I wouldn't suggest you wait until the father applies to court - you make the application now for the variation on form C100.
The father has an order, so the school cannot intervene - but if you chose to collect them earlier, that would be between you and the court when it comes to explaining why.
I'd suggest, given their ages and distress, that you explain to them that you have to apply to court to change the order and that this can take some time - but that you are doing all you can to help them. Then make the application to court tomorrow.
You could try applying for an urgent prohibited steps order to prevent the father taking the children out of your care or the care of someone you put them in (e.g. school) until such time as the court has re-assessed the situation and found out what they boys' distress is stemming from. I am not sure this will work and it may just end up in the normal first hearing list, but it is a way of trying to get an urgent hearing within a few days. An ordinary variation to the existing order will take at least 6 weeks to get to a first hearing.
Yes, it makes sense to try to let the father help make a decision in the children's best interests. It supports your case in court if he refuses to take their views into consideration.
You're very welcome