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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12067
Experience:  30 years as a practising solicitor.
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My partners two children came for their allocated time for

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My partners two children came for their allocated time for the Christmas holidays. They were due to leave at noon on 28th dec. neither child wanted to go and so they asked their mother if they could remain with us. We have a contact order to protect our time with the children. She does not. She agreed that the children could stay until noon on 30th. However the youngest really didn't want to go. Then eldest stated she was frightened about how angry her mother would be about them stating two extra days as it was. The eldest said she would like to go home but the youngest was adamant she didn't want to leave. She is 11.
As we were preparing to get emma ready to leave with her father, our doorbell rang and a strange man to take the girls down the road and that their mother was in the car.
I felt this as an utter invasion of my home. The children were totaklly distressed as our solicitor advised us to hand Sophie back to her mother even though she was begin us not to let her go.
This evening the youngest child texted saying she is scared -genuinely terrified of her mum and said that her mum said that she was to blame for all the drama and as a result her dad would be thrown in prison and fined. The child is racked with guilt. Three weeks ago she said they children weren't her problem as it was his contact week and when we picked them up from their mothers she stalked around the car like we were prey and refused to let them out a second before 6 even though the girls were ready at 5:30 and stated to us they wanted to go.....their mother has a history of erratic and dangerous behaviour and it is escalating. The solicitor told us to just hand back the kids but we now know we handed them back to a very scary environment. They want out asap. What can we do to be the children out of there and safe
Thank you for your question.
You need to instruct the solicitor to go back to the court and ask for a residence order in your partner's favour so that the children will then reside with you as opposed to their mother.
The court may have to hear evidence and would reach a decision based on that evidence as to what is in the childrens best interests. The children will also be asked to state their position, either by writing to the sheriff or by meeting with him or her in private at the court.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited for my time.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 3 years ago.
Is there anything we can do in the meantime to get the children (especially the 11 year old) out of there today? She wants to be with her dad but her mum keeps threatening her and saying she will put her dad in jail. She is terrified. We have her fears documented from text messages last night. Would the police or child protection help us? The eldest told her father two days ago that she is frightened of her mother's rages and that is why she felt compelled to go home to her as she was scared what she would do if she stayed longer. She said she was already terrified of the consequences of her staying with her father for two extra days.
Customer: replied 3 years ago.
I should clarify that the mother does not have a residency order.
You could phone the duty social worker in your area, but I'm not sure that the police would get involved. They can be hit or miss in a civil case although I wouldn't rule out trying if you have evidence of abuse from text messages.
Ideally you want to get the social worker out and if the children say they don't feel safe with the mother they can be removed to a place of safety which would be with you in these circumstances.
Customer: replied 3 years ago.
Hi. Thanks so much for your advice. We called child protection and because there was record of them being called out before, they immediate sent a team out to check on the children. We haven't heard anything yet but we are glad that the team took our concerns seriously.
Thanks, ***** ***** it works out for you.
Customer: replied 3 years ago.
We have not heard back from child protection but they have left. The mother called my partners sister and said that he would not get to talk to the children when they are in her care. The youngest is bereft and scared. We don't know what to do.
Customer: replied 3 years ago.
We have not heard back from child protection but they have left. The mother called my partners sister and said that he would not get to talk to the children when they are in her care. The youngest is bereft and scared. We don't know what to do. Also the mother keeps saying that her father will get fined and jailed if he takes Sophie on days not on his contact order. We have been told that is not true as he pursued the order as his wife was denying access. Can he get his youngest daughter today? She repeatedly is saying she is scared and wants to come here. Could the police prevent him if she wants to go with him?
Firstly, he can't be fined and jailed. That is just nonsense. Nor can she stop the children talking to you partner. If the youngest insists that she want to come to her dad, the police are unlikely to stop her. They don't have jurisdiction to enforce a contact order one way or another.
Secondly, find out what child protection have to say and get back to me.
Customer: replied 3 years ago.
Hi there
Child protection called the mother back after talking to my partner to advise it was in the best interests of the children to allow them to come back up. The mother said she was sticking to the Contact order -which has no reference to her at all -only the pursuer (my partner). She has conceded to allow him to talk to the children, but whether this will happen or not is another matter -as she frequently takes their devices from them or tells them they can't talk to their father. So the situ is that the youngest is stuck with her mum -very afraid. The mother will not let the youngest leave. We called the local police to ask their advice and they said there was nothing they could really do as unless they have a document which states he must have them, then they can't enforce anything. So we have had to decide to leave the girls with their mother as we cannot and will not go down and gave a drama play out in front of the girls such as they were witness to by their mother at our home yesterday. So an unhappy outcome but we don't see any other option.
What does the older girl want to do?
Customer: replied 3 years ago.
The older girl wants to move here but she has said she is worried to say anything because it will 'start a war'. The eldest is very emotionally distant at times as I think she holds a lot of the emotional stuff inside because her sister is more vocal. The eldest is more aware of the consequences of telling her mum she wants to live here. She said to her fathe two nights ago that she too is scared of her mums reaction and wanted to stay up here but knew that if neither of the girls went home that her mum would 'go mental'. The eldest shoulders the collateral damage if you know what I mean-which is so unfair. Thankfully she has been seeing a counsellor but her father and I are deeply concerned that she will break emotionally. The night before she left she broke down in tears in front of her sister -when they were in bed. The younger came to get my partner. The eldest wouldn't divulge what was wrong but we can only assume she was nervous about going home without her sister and dealing with her mums anger, or she was deeply sad to leave her father. She doesn't cry often whereas the youngest is openly emotional.
Basically, both children want to move here permanently but are afraid what their mum will do when they tell her.
Does the father have the ability to text them? Would they be prepared to leave and go with him tonight if he went there? It seems the social workers have as good as said that father should have them. The police won't interfere with that and the fight can start after New Year. If I was the father that's what I would do, in the best interests of the children.
Customer: replied 3 years ago.
Hi there. Apologies for the silence but a lot happened this weekend. Both children have notified their father that they want to have residency with them. They are 100% sure this is what they want. He has explained the seriousness of the decision to them and they both seem to understand the ramifications. Our question is, how do we set the wheels in motion? The girls are terrified to tell their mother they want to move to Aberdeen as they know she will 'go mental'. How do we execute this? The father has no means of direct contact with his ex-wife. She no longer is using her solicitor. She told the youngest some time ago that she would not prevent the girls going to live with their father if that is what they wanted, but he is deeply concerned what her actions might be after her behaviour over the last few weeks. Is this something for a solicitor to deal with or social services? How do the children relay what they want to do without being put risk (the mother threatened suicide on 2012 while they were in the house and child protection and police were called by her friends). Any advice would be appreciated. The girls are desperate to move here but terrified of their mothers reaction and have intimated they are scared that we 'will be put in danger'
What is the geography here? Where does their mother stay?
Customer: replied 3 years ago.
We are in aberdeen. The mother is in Kinross. The youngest is in her final year at primary school and the eldest in 2nd year. Our intentions would be to move them here during the summer holidays to minimise disruption of their schooling.
You said that really was an emergency situation. How on the one hand can you argue that yet on the other wait another six months or so? If I was the sheriff looking at this that would cause me concern. The best interests of the children have to examined now. You can't argue that it's in the best interests of the children to stay with an unstable mother for the next six months or so and then it is in their best interests that they come to live with you.
I think you should be seeing a solicitor, not social services, now about this. An application has to be made to the court for a residence order.
Unfortunately, this is either something you do or don't do. There is no way to legislate for the mothers reaction and I understand your and the children's concerns about this. It is not something I can give you much help about other than to say a family member or friend could be of assistance in some cases.
I think you have to see your solicitor. The proceedings could take six months anyway but I think you have to act now.
Customer: replied 3 years ago.
Thanks. It is an emergency situation, but we have gone through every avenue we can to get the children out of there without causing more trauma. If we had our way we would get the children out now, but the children are scared of their mothers reaction. if the social services won't remove the children for us, I don't see any other option than to go through a legal process which will take months, hence my comment relating to them moving in the summer. It is not their fathers wish. He wants them out now but I know the legal process won't allow for that if social services haven't removed or put the children in an at risk register. Silicitor it is it seems. Thanks for your advice.
Customer: replied 3 years ago.
Also I should have been clearer that our ultimate outcome would be for the mother to listen to her daughters request, do what is in their best interests and let them move here without the need of solicitors, court reporters etc. we just want to spare the girls more trauma
All noted, thanks. Having thought further about this and remembering their involvement over the holiday period I wonder if your partner should ask for a meeting with social services to sound them out on anything they might be prepared to do here.
Customer: replied 3 years ago.
Thanks for getting back to me. Yes, he is calling them tomorrow. He called today but the officer he had dealt with was on annual holiday today. He is going to talk to her and his solicitor tomorrow. We just want minimum stress put on the children. They have not been physically hurt, but they are living in terror of their mother's rage. It is extremely distressing for all of us. We had assured the youngest we would get her out of there this past weekend and we failed. We can only hope that when the mother is faced with the reality that her daughters want to reside with their father, that she will agree to let them go. We have been trying to do everything by the book and not make knee jerk reactions based on emotion as she has. We are trying to be the calm in the storm. It is so difficult. I really appreciate your candidness.
You'll have to take your own solicitors advice but for what is worth if I was the father I would be for not returning them after the next contact visit and simulataneously serving an application for a residence order and interim interdict preventing her from interfering with his care of the children.
However, I will now leave it to your solicitor to advise.
Customer: replied 3 years ago.
Just to follow up, the advice from our solicitor is to write to the ex wife via our solicitir and ask to arrange them to be resident with us. If she refuses then go down the legal route.
I am in agreement with your assessment that this would not be looked favourably upon with a sheriff, but our solicitor seems not to be factoring in the girls' fear and genuine desire to get away from their mothers house asap. My partner is calling social services today to see what further can be done. Otherwise we are proposing to not return them after next contact.
If I can assist further let me know.