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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?
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So the new application has been allocated to magistrates?
Are they carrying out a s7 report?
What exactly has the court ordered so far?
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.
What happened since Sep 2017 - was there any contact between mother and child?
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?
Did you not ask for the tests to be completed in the meantime?
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.
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?
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".
You're very welcome.
I do hope that it turns out well for you.
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My pleasure Ewan.
All the best.