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plclegal, Barrister
Category: Family Law
Satisfied Customers: 9107
Experience:  Barrister at law
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I am urgently needing some advice around child arrangements.

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Hi, I am urgently needing some advice around child arrangements. We are currently in court proceedings and ex is all of a sudden seeking 6 weeks of contact per year with our 12 and 14 year olds, despite in the past year since he left not spending one day of the holidays with them, only every other weekend. I full time homeschool the 14 year old and am the carer for the 12 year old who has autism and whom I claim DLA for. I think ex is unreasonable to ask for 6 weeks, especially as he works full time. Cafcass are apparently endorsing this even though my 12 year has only just started spending weekends with him after refusing the majority of contact for the past year. Despite this, he seems to have convinced the cafcass officer. He is also insisting on a "lives with" order and refuses to allow me to be the primary residence and him have contact. I am not happy with this and it makes no sense to me. He is claiming it gives him less rights, but apart from the holiday consent thing (which we can put in extra conditions around so its equal), does it actually change anything legally? What are my chances of being awarded residence by the court if I have been a stay at home mum all their lives and they spent the majority of time with me? I cannot understand why cafcass have said this as I thought they would have to be with him 40% of the time for him to have a "lives with" order? He will proceed to court with barristers and the whole works over this one point and I have no representation. What do you think would be the outcome? Many thanks
JA: What steps have you taken? Have you filed any papers in the family court?
Customer: yes its in the court and the second hearing is in a few weeks if we can't agree
JA: Family Court normally sits in a local County and Magistrates' Court. Do you know the location of the court? If not, what county do you live in?
Customer: I think it's Staines
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: no thats it

Hello and thank you for the question. I’ll do my best to assist you and provide an accurate and speedy response. Please bear with me as this is an email service and not live chat, replies will not be instant as a result. Also note that the discussions here are for general information purposes only and do not constitute a lawyer client relationship.

I’ll review this in the morning due to the late hour and come back to you as soon as I can with any points I need clarifying in order to be able to provide an answer.

Good morning.

Can you confirm that the six weeks he is seeking is effectively a share of school holiday time - spread across the year? What is his proposal for childcare if he does not have 6 weeks annual leave to take?

Is this the only contact he is seeking or are there other dates and times, such as the every other weekends that you mention?

What are the children's views on contact, given they are 12 and 14 respectively?

Are Cafcass recommending a joint lives with order or a lives with order to you and spend time with order to him?

Customer: replied 10 days ago.
Thank you for your reply. Yes he is seeking 6 weeks of school holiday time. Initially he wanted 14 days in a row during the summer and half of all other holidays. I suggested extended weekends during half terms, Christmas and Easter split between us and 2 separate weeks in the summer (due to our 12 year old with autism being unlikely to spend 14 nights away from home). He is now asking for the first 2 weeks of the summer holidays plus the fourth week. He works from home on his own business but never stops working and certainly does not take weeks and weeks off per year. I assume he will be working while the girls are with him. He lives 15 mins away from me so it's not as if the girls have to travel hours and stay with him with no flexibility.
He seems them every other weekend currently Friday - Sunday plus we agreed every other Tuesday evening for dinner.
Cafcass did not state anything about a lives with order. The report talks about spending up to six weeks per year, depending on ex's work commitments as well as the weekend arrangement.
Ex implies that cafcass have recommended a lives with order but it does not state this. The application is stated as "spend time with" and nowhere in the report does it say anything different.

Thanks for the detailed reply.

If Cafcass aren't recommending a shared lives order, then the court would have to be persuaded of the benefits by dad's barrister.

Your situation is a classic lives with mum and spends time with dad situation. However, there is some recent case law to back the principle that even where the time split is weighted towards one parent being the main 'home', that labelling it a joint lives order can still be appropriate.

It will depend on the judge, as if they are very traditional, it's likely to remain labelled as you have suggested - lives with you and spends time with dad.

If they are younger, more influenced by case law, then they may go with joint lives.

In reality, it doesn't actually matter too much what it is called, it is the arrangements themselves that you need to have sorted.

Asa Cafcass say "up to six weeks holiday per year" why not propose a gradual increase up to that point as a way of him getting the six weeks but not until next year or maybe the year after?

If you can agree the contact arrangements then what the order is called is only a matter for short arguments or written statements before the court rather than a full final hearing.

I hope that this is helpful? Can I assist further at all?

Customer: replied 10 days ago.
Thank you, that's really helpful. I keep reiterating to him and my solicitor that as I am the carer for our 12 year old, surely it's almost certain that I should be the primary residence. She has spent only 4 nights away from home in years, only stayed at her dad's house for a couple of nights in the past whole year. Would this almost be automatic that if a child has SEN, that the carer would have primary residence?
Am I reasonable to state that ex needs to be off work as per cafcass recommendations to spend holiday time with the kids? They are 12 and 14 so I would assume they should be free to see their friends based near my home if he is working.
Ex has a big problem with having to ask my consent for taking the girls on holiday and this is the main reason that he is insisting on "lives with" rather than "spends time with". My argument again is that I am caring for a child with SEN, who has spent very little time away from home in the past several years and that I should naturally be asked for consent as I know best what her needs are. Is this reasonable and does it carry more weight if a child has SEN?
Many thanks and apologies for so many questions!

As above, the actual arrangements and what they are labelled are separate things - even if you have the majority of the care it could still be labelled joint lives with. That wouldn't change the reality of the day to day whereby your children spend the majority of their time with you.

I understand the concerns about holidays and the fact that your child has SEN, but I do feel the court may say that when dad has the children, it's up to him where they go on holiday or what he does with them. You withholding consent or insisting on your permission for him to holiday with the children could be a justification for the joint lives with order as normally a parent would not have veto over the other's holiday plans, even with a child with SEN.

I would suggest that agreeing to holidays and giving consent as a default rather than the exception could be a way to avoid the whole joint lives issue.

I understand your concerns, as above, but realistically my view is that the court won't accept that you have the right to dictate where he takes the children during holiday time. You both have equal rights as parents and this includes making decisions about what you do with the children when they are with you. I hope that this makes sense?

Customer: replied 10 days ago.
Thank you, ***** *****'s extremely helpful. I will take that advice regarding consent for holidays in the hope that the "lives with" will then not be insisted upon. Thanks so much.

Very happy to help.

Thank you for your enquiry today. I am happy to answer follow-up questions - please do get in touch with requests for extra information or further queries and I will do my best to help you. You can request me personally on a new question thread saving my profile as one of your preferred experts and by tagging me (@PLCLEGAL) at the start of the new thread. Best wishes, Peter.

Customer: replied 10 days ago.
Thanks. One last thing, is it reasonable for me to request ex is not working during the holiday time he requests to have the girls? This was in the Cafcass report, worded "if his work allows this". Ex's solicitor is very aggressive and claims he has the right to make responsible decisions when he has the girls and this is not acceptable to ask. And claims it is controlling of me to expect he is not working! How do you think this would be ruled upon in court, given the Cafcass recommendation? Thanks, Jo

Of course, happy to help. I think the Cafcass point is that if he is working, what is the point of him having the children during holiday time. Holidays are generally for children and parents to spend together, if he can't spend the time with the girls, then it's not actually meaningful contact.

So I think Cafcass would back you up on this point - it's a child focussed point.

plclegal and 3 other Family Law Specialists are ready to help you
Customer: replied 9 days ago.
Thanks very much, very helpful.
My pleasure.