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SASH_Law, Lawyer
Category: Law
Satisfied Customers: 2716
Experience:  LLB (Hons)
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Can a magistrate overule a district judges ruling? Judge sat

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can a magistrate overule a district judges ruling?
JA: Where is this? It matters because laws vary by location.
Customer: Judge sat in guildford familes court, magistrates are at lincoln magistrates court
JA: What steps have been taken so far?
Customer: None, district judge set out a child arrangements order in Sep 2017, Lincoln magstrates are considering changing that order
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No

Hi, I'm Lea and I have reviewed your query.

Was the DJ's order a final one, and a new application has been made, or has the case simply been transferred from one court to another?

Please bear in mind this is an email service and not a live chat so responses may not be instantaneous. I am not available for calls, but in all cases it is very likely you can be helped online.

Customer: replied 6 months ago.
1 Sep 17 ruling was a final order stipulating certain conditions (based around her proving by HST etc that she was no longer abusing alcohol) for her to have unsupervised access to my daughter,which my ex failed to comply with. She has now taken out a new case for unrestricted access to my daughter

So the new application has been allocated to magistrates?

Customer: replied 6 months ago.
in Lincoln, she still has not provided hair strand testing or proof of attending an alcohol abuse programme. Lincoln magistrtaes have agreed to contact at a contact centre until 10 April, which I requested, but my ex-wife now wants full overnight unsupervised access. I do not believe this is safe for my daughter

Are they carrying out a s7 report?

Customer: replied 6 months ago.
No, CAFCASS provided a safeguarding letter at the original hearing in jul 19. It is my view that my ex should comply with the original order by the district judge and then I would have no problems with unsupervised access. I can't see that magistrates can overule an order just because it is not convenient for my ex.

What exactly has the court ordered so far?

Customer: replied 6 months ago.
Lincoln Magistrates ordered on 24 Jul that contact should be monthly at a contact centre, my ex to pay. This took place with limited success. Today they have ordered that contact should be fortnightly at a contact centre with costs shared as my ex claims they cannot afford it.
Customer: replied 6 months ago.
A hearing is scheduled for 10 Apr 20, I maintain that the original order was sound but has not been complied with. Should my ex comply, then contact will be allowed unsupervised.

Did you not raise the issue of the non compliance with the previous order?

I am struggling to see how you got from her needing to comply with certain aspects, to her making an application and getting contact without first proving she complied with the previous order.

Customer: replied 6 months ago.
I raised it but no notice was taken, I'm convinced they did not read my statement. Under the original DJ's ruling, unsupervised contact was not allowed until compliance, contact centre contact is not unsupervised so is allowed under the original order.

What happened since Sep 2017 - was there any contact between mother and child?

Customer: replied 6 months ago.
contact was to be supervised initially by grandmother, however on first contact in Sep 17, my ex was drunk and grandmother claimed she could not control my ex and so relinquished the supervisory role. Ex's new partner took on role for 2 months until they split in acrimony. Since then there has been no physical contact until Oct 2019 following the magistrates ruling on the contact centre basis. The contact centre was my proposal, not my ex's.

I see, so you agreed to a contact centre (supervised?), and the magistrates agreed with that by consent?

What I am not clear on is why the court has not ordered a s7 report or suitable testing?

Customer: replied 6 months ago.
I wanted Emily to have contact with her mother, but in a controlled environment (it was supported contact). However, my ex is now pushing for unsupervised and overnight contact.

Did you not ask for the tests to be completed in the meantime?

Customer: replied 6 months ago.
I have consistently requested that the tests be completed. My ex claims she cannot afford it. 10 months worth of social services reports and investigations, 5 court appearances and £30,000 of my savings went in to the DJs ruling on 1 Sep 17. I have the nasty feelinig that the magistrates are going to ignore this.
Customer: replied 6 months ago.
Bot***** *****ne is for 2+ years she has ignored my requests for her to comply in respect of HST, has refused (until magistrates decision in Jul 2019) to even acknowledge my offers of contact centre contact and is now requesting full unsupervised access after 5 sessions of contact centre. Can the magistrates overturn the original family's court decision and rewrite an order giving full unsupervised access?

The previous order remains in force until it is replaced by a further order. Therefore, if you wish to enforce it, you are entitled to make an enforcement application on form C79. However, since you are already in court, it would seem to make more sense to insist to the court that CAFCASS need to undertake a s7 report and that the testing previously ordered needs to take place. Until such time point out to them that you will not agree to anything other than support contact in a contact centre as the mother has yet to comply in more than 2 years.

You are going to have to be insistent - agreeing to the contact before the tests were carried out should have been on the proviso that the tests would also be completed by the time of the next hearing. Now you will have to wait for the next hearing (bar making an enforcement application) for your opportunity to speak to the court again and insist that they pay attention to the previous order given that there has been no compliance at all, and as far as you are aware, no change in the mother's behaviours.

The short answer is that yes, the current court can make a new order on the basis of the new information before them that will change the previous order. I cannot imagine that magistrates would be so bold as to order unsupervised contact without a full s7 report and the testing that was previously ordered. Something must have happened in the intervening period.

Customer: replied 6 months ago.
I am obviously making the mistake of being to deferential to the magistrates (my ex has no problems with shouting angrily in court), I shall try to be more forceful, politely, in future. My worry is that I have been subject to appalling gender bias by social services, CMS and the courts in the past and feel I have to be very circumspect in what I say. There is no new information before these magistrates, nor has anything changed in the interim. Agreeing to contact at a contact centre without proviso of testing was fully compliant (on my part) with the original order. It is only unsupervised contact which is prohibited without completion of the tests.

You can be polite but firm - don't be cowed by the magistrates, they are supposed to take their guidance from the legal adviser, and if they are about to make the error of giving unsupervised contact without first ensuring that the child's welfare is paramount, then they are failing in their roles.

Be firm - insist that the testing is carried out before any consideration is given to unsupervised visits, nevermind overnights. That is in line with the order already in place and should be adhered to given there have been no intervening events that change the need for that testing.

Does that assist?

Customer: replied 6 months ago.
Unfortunately, after more than 26 years in the military I am conditioned to respect and defer to authority. It is difficult for me to interrupt or force my opinion across. However, I shall take your sage advice and apply it at the next hearing. Should the magistrates consider giving overnight or unsupervised contact without reference to the previous order, I shall have to appeal their decision. Emily's emotional and physical welfare are paramount to me. I thank you for your advice.

If it makes it easier for you, put your thoughts into what is known as a position statement and ensure that you file it in court at least two days before the hearing (to the court and to the other party) and then bring copies with you on the day of the hearing, just in case they claim they did not receive it. When you are asked what your position is, refer them to your position statement and state that you are happy to clarify anything that needs clarifying, and then re-state the most important thing "I am content for supervised contact to continue so long as the testing that was previously ordered is complied with before any decisions are made regarding unsupervised or overnight contact".

Customer: replied 6 months ago.
OK, thank you very much for your advice, I shall do just that.

You're very welcome.

I do hope that it turns out well for you.

Please kindly take the time to rate positively using the five stars at the top of your page as that is how I am paid for assisting you today. Thank you.

Customer: replied 6 months ago.
Many thanks Lea. Have a very pleasant rest of the day, Ewan

My pleasure Ewan.

All the best.

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