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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12176
Experience:  30 years as a practising solicitor.
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Hi again My partner's divorce is now finalised and he has been issued with the Extract. There have been ongoing problems - specifically since the Minute of Agreement was signed regarding the welfare of the children. Both children wish to reside now with their father as they have expressed that they experience fear and stress on return to their mother's after their contact time with their father. Social services called on the children and their mother and the girls expressed their anxiety to the officers and also that they wanted to live with their father. WHen asked why they wanted to move, they cited because their mum made them 'do jobs'. The officer spoke to us and said this seemed a flippant reason for the children to wish to move. The youngest child wished t to return to her father for the remaining holiday period which her mother would not allow - as the time was not specified as contact time with their father in the COntact Order he pursued (forgive me if I am repeating info you have read before). The social services called the mother and said that it was their belief it was in the girls' best interests to return to their father for the remainder of the holidays. Their mother refused. We received via our solicitor two letters from the mother's agent - one that was sent directly to us which we have never physically received and one sent by email ( the one sent by post was attached as an email and this was the first time we saw the contents). In the first letter directed to my partner, his ex wife's solicitor said that he would be in breach of the order and that if he kept the children at any time longer than stated that he holds instructions to lodge a Minute in the court proceedings and a hearing convened to have him ordained to attend court to explain his ‘failure’ to obtemper the court order. He also stated that If he had any queries regarding the operation of a court order then they do recommend that he consult with his solicitor. He will be able to speak to him regarding the seriousness of a failure to obtemper orders of court. My partner has spoken many times to his solicitor about this Order and its implementation. His solicitor says he has a fundamental disagreement with my partner’s ex-wife’s solicitors view of the order. ( There is no mention of the ‘defender’ in the order. Only the pursuer – my partner). In the email sent to my partner’s agent he states that there is no material change in circumstances to warrant a change in the residency of the children and that my partner signed an affidavit for the divorce and that no mention of a change of residence was stated. Also that the sheriff that granted the divorce must have been satisfied with the arrangements. He also stated that his client had notified him that social services had no concern regarding the children’s welfare and that my partner should ‘let matters lie’. It also stated that the children wanting to move was not accepted by his client and that her opinion was that the children were being forced to make this choice. My partner spoke to social services on Friday and they notified him that this case was being assigned to a duty team (?) as they did have concerns for the children. The officer at social services also stated that the mother was asked if she would let the children talk to an Officer from the Young Person’s Rights. She refused. We do not know why. My partner was asked before his ex-wife was, if he would allow them to talk to the officer and he agreed fully. And finally the questions………sorry for the long story. My partner’s solicitor lodged a caveat with the P&K court for my partner to be notified if his ex-wife applied for a residency order. My partner will be applying via his solicitor tomorrow for a residency order to be given to him. His solicitor feels this is the only way forward now. Does the residency order have to be lodged at the P&K court or can it be lodged at the Aberdeen end where we reside? Is there any legal reason why we couldn’t do this? If my partner could do this via Aberdeen would he be wise to lodge a caveat at the Aberdeen court also?

Can we take the children into our residence before the residency order has been given or denied? There is no existing residency order with either parent. ( We already have placements in schools here guaranteed by the council).

Would the court put the girls’ wishes first or their mother’s?

The children’s maternal grandparents contacted my partner after the girls had called them at Christmas thanking them for gifts. The grandparents haven’t seen the children, until today in over 2 years as their mother does not speak to them. Their mother had taken their devices, forced them under duress to show all text communications, copied them, sent them to her solicitor who forwarded them to ours, and told the youngest ( after reading in a text that she was looking forward to seeing her Nannie and granda) to tell my partner that she would not stop them seeing their grandparents this time but would not allow future visits to them unless she took them there and the girls asked her to take them. This means that the girls, who know that their mother doesn’t have a relationship with her parents anymore because she cut contact, would have to ask their mum to see them. The girls are totally unlikely to do this as they are aware of the strained relationship. The grandmother is not aware of the residency issue but expressed that if Julie tried to contact her regarding not seeing the children then she would block her calls. Do the granparents have rights to see their grandchildren if that is what the grandchildren want or can the mother just prevent this?

Several people including close relatives have expressed deep concern regarding the children’s welfare with their mother. It has been said by a couple of people that they fear that the mother might try to harm the children and herself if she feels she might lose residency. This issue has worried my partner for some time as his ex-wife had threatened suicide while the children were in the house in 2012 – child protection were called and the police. Should we ask these parties to talk to social services about their concerns?

Thank you for your question.
1. a caveat should be lodged in Aberdeen in case of an interdict at the instance of the mother but the residency proceedings have to be taken in the sheriff court in the district that the children are habitually resident.
2. The action should be for residency and interdict. You can take the children if there are concerns as to their welfare and that would be established by the mothers behaviour and history.
3. Ther is no breach of any court order as regards ***** ***** there isn't one. You are retaining the children in their best interests. The mothers interests are not relevant.
4. Grandparents have no rights in law in these circumstances. So another reason justifying the father having contact is the mother's reluctance to allow extended family contact.
5. There is no harm in asking that social services speak to these witnesses. They could also give signed letters or statements.
I hope this helps. Please leave a positive response so that I am credited for my time.
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Customer: replied 3 years ago.
Is there any truth in the statement made by his ex-wife's solicitor that he could be in contempt of court? Our solicitir disagrees as the Contact order was pursued by my partner
They could argue that he's in breach of the contact order by keeping the children beyond the times specified for contact but aim don't think a court would agree in the circumstances.