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Harris, Law Specialist
Category: Law
Satisfied Customers: 2851
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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My brother is goping through a messy separation at the

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my brother is goping through a messy separation at the moment and his partner is beiong unreasonable about when and where he sees his two children. They are 7 and 5. His partner has recently told him that he cannot bring the children to my mums house unless she smokes outside. She has seen and looked after both children on a weekly basis for 7 years. She has fed and clothed them and has bailed my brother and his partner out on more occasions than I can remember.
She has apparently gone to a solicitor. My brother thinks if he takes this to court he will lose as Mothers are usually the ones who are granted access. She is threatening to use the fact that my Mum smokes as evidence against him as his youngest son has sinus prblems and often has coughs and ear infections.
Sorry this is so long winded, I am just trying to get some advice for him as he is refusing to help himself.
Hi, thanks for your question. I am a qualified family law solicitor.
Before she pursues an application to court she will need to attend a mediation information and assessment (MIAM) session to see if mediation is suitable to deal with this matter, unless there is urgency or documented domestic violence/child abuse concerns. If the mediator deems mediation unsuitable then she would be able to proceed to court. If it is suitable then sessions will be offered to them to negotiate and reach an agreement.
If she did proceed with a court application and no agreements can be reached between them the judge will consider the following criteria when deciding what order should be made:
1.The wishes and feelings of the child concerned
2. The child’s physical, emotional and educational needs
3. The likely effect on the child if circumstances changed as a result of the courts decision
4. The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision
5. Any harm the child has suffered or may be at risk of suffering
6. Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
7. The powers available to the court in the given proceedings
The court would want there to be a continuing relationship between the children and both parents as this is the children's right.
It is likely that she would use the smoking as a concern for having contact with the children, especially if they have medical issues. It may therefore be in his best interest to agree for there to be no smoking around the children when they are with him.
Please do let me know if you have any further questions about this.
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