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Court - it is seldom over until you give up

How to defeat your worst enemy in court

It is easy to defeat your worst enemy in court.

They are the one person who can make you give up. They’ll make you look like an idiot. They’ll second guess you and make you look like a fool. Finally they will completely blow any chance of getting anything like the result you would like.

You already know who this person is. Because you see them every time you look in a mirror. Yes folks…it’s you.

You are your own worst enemy in court

Court - it is seldom over until you give upI don’t want to come over all…metaphysical here. You are responsible for your actions. No one else. Yes, yes, yes. I can hear the protests now. You’re discriminated against. Your ex has made allegations that make you look like Vlad the Impaler’s less pleasant brother or sister. The court is a huge money-making conspiracy out to grind you into the dirt. I’m blaming you for the situation you are in. You were left with no option.

Not true.

You decide what to say. You decide what to do. You decide to give up. Or not. No one else. This is stunningly good news. It means you are are in far more control than you ever, ever managed.

It means you are in control ultimately.

If you decide to walk away it’s because you have chosen to. The same goes if you have given your ex, the CAFCASS officer, the judge or the security guard who scans you for metal objects your considered opinion. A 91(14) doesn’t have to stop you. Neither does a final order. Or bad behaviour in the past – if you have addressed it.

If you ex has painted you as an aggressive nutter and you kick off in court you have proven their point. If you walk away and you think that is what the ex wants, they have `won’ (at this point the more high-minded among you will put your hands together in supplication, gaze heavenward and utter softly that it is not about winning or losing…it’s about the kids. You know what I mean).

The court won’t say `He/she walked away because he/she had no choice’. It won’t even give the matter any consideration. It will close the case, probably give your ex everything they want or decide you were happy with things as they are.

So if you aren’t happy with it why are you walking away?

Walk away from court and guarantee your failure.

Court - where there is life, there is hopeWe know how hard it is. Even if you take the attitude you have a 99% of chance of not getting the outcome you want you have a 100% chance of the same outcome by giving up.

But back to the positivity for a change.

There’s a wider point here isn’t there? You’re doing what you’re doing because you believe it is in the best interests of your children. And that being the case walking away most definitely isn’t.

Maybe when it is all over you won’t get the result you set out. Maybe you’ll get one you can live with, maybe you’ll get one you can’t, maybe you’ll get one that will keep you up for nights in years to come.

But if you don’t give up, you’ll be able to look yourself in the eye in that mirror and be able to say to yourself (and anyone else who will listen) `I did my best and I didn’t give up. I did what I did for the best reasons’.

No one can give that to you or take it from you can they?

Money makes the world go around

If you divorce, you need an order when it comes to money. Until that point you are tied financially to your ex – your assets and liabilities will be theirs.

Michaela Wade tells you the basics on what you need to know. As a former long-standing debt collector and qualified paralegal who has assisted countless litigants in person she has some advice that may help you…

LGBT parents – the basics

With the increasing openness when it comes to the existence of LGBT people there’s a corresponding increase in the visibility of them in all walks of life – including as parents. Unsurprisingly enough (for some of us at least) lesbian, gay, bi and trans people do have kids.

Some of them are conceived, born and are raised in families in the *ahem* old-fashioned way, others in a more circuitous manner. It’s not an unreasonable believe to think that a non-traditional family faces it’s own unique challenges and in many respects it’s a correct one.

In terms of the law however there isn’t a great deal of difference between straight and/or cis people and everyone else when it comes to the matters concerning contact, residence (OK, OK `who the child lives with’) and everything else the Family Court is concerned with.

There are a few basic thoughts to consider here.

PR is important to LGBT people

Parental Responsibility is the key here. In short that means a) being on the birth certificate or b) having an order awarding you PR. Without it, you are at a serious disadvantage.

If you’re adopting a child, it’s something that should be taken care of. If you’re conceiving artificially, make sure you are on the birth certificate – or that the birth parent signs a C(PRA001) form to give it to you.

Rainbow flagThe nuclear scenario? You split from your partner and you don’t have PR. Your ex refuses contact and when you apply to the courts you’ll be filling in the standard form for contact (a C100) but you’ll also be needing a C2 (permission to apply) because you have no legal relationship with your child. And when you get there your ex will deny contact, deny you had much involvement with your own child and in the meantime is free to change their name, give PR to whoever they like and move to the other side of the planet if they so wish without you being able to stop them.

So get PR.

The T in LGBT

When it comes to trans parents they may well already have PR – particularly if the child was conceived/born before transitioning. It’s a sad fact to say that many of our trans clients coming out/transitioning has been at least a factor in the breakdown of their relationship with their ex’s. And often a source of hostility when it comes to children having an ongoing relationship.

Yet children are usually completely unfazed by this because Mum is still Mum and Dad is still Dad.

Furthermore in our experience the court is usually completely indifferent to a client’s status as transgender and wholly uninterested in parents seeking to use this fact to limit a child’s relationship with either parent. It is possible it will likely be an aspect discussed in any welfare report (such as a CAFCASS Section 7 Report) but will often carrying little weight overall.

But that’s no different to any other case where a child’s welfare is examined.

TL:DR

If you don’t have PR, get it. Whether you are still with your partner or they are now your ex. You are putting yourself at a serious disadvantage without it.

How to make your ex communicate with you

Clear, constructive and accurate communication is the way to go! It means you can avoid a court case. Or mediation. Or an argument. Or street theatre with you and your ex starring with a supporting cast of serious men and ladies who suddenly arrive stage left in cars with flashing lights and sirens.

Picture the scene. You have an ex you disagree with.  You go to the local Costa to meet him/her. Notepad and pen in hand you hammer out the issues and go home knowing that you’ve dodged a bullet. You don’t need to pay at least a couple of hundred for a court fee. Or £260 an hour to a solicitor (or much less to your friendly McKenzie Friend – contact us for details, we’re very reasonable…). You’re not going to waste holiday days from work, get sleepless nights, sitting around in a rundown court building with awful coffee and a long drive to get there in the first place. That’d be absolutely bonkers wouldn’t it? Lucky, lucky you!

No laughing at the back please because…it doesn’t always work like that does it? We can always dream!

I’ll take an educated guess here. You’re reading this because you have…the other sort of situation we all know and, erm, love.

Instead you’ve got communication via solicitor. And court order. Everything is positioning. In the old days it’d be the evening-ruining letter waiting on the mat for you when you get home (as opposed to the email that pops up on your phone and ruins your working day instead). Usually on a Friday afternoon just before a Bank Holiday weekend. We’ve all been there.

In short, the time when communication is needed the most, the more likely it isn’t going to happen.

So what do you do when your ex refuses to communicate? When you are told not to email, text, write, attempt mediation or turn up. Or communicate via his/her solicitor Oh…that’s easy. You respect that request.

Because that’s a sure fire way to become the proud owner of a PIN. Or a caution. Or a non molestation order. Glittering prizes for all! And on top of the fact it’ll be on record you can sure as hell count on the fact it’ll end being used to demonstrate what a bad person you are in subsequent hearings. It may end up with your ex getting legal aid too (although to be honest that’s often not a bad thing).

Truth is…you can’t make your ex communicate. So if they are clear they don’t want to – don’t even try.

The Children Act doesn’t mention that parents need to communicate. Of course, it’s in the best interests of children for Mum and Dad to actually talk to each other (unless someone has written a groundbreaking parenting book with a title like `Bringing your Children up Via Solicitor’s Letter‘ that I’m not aware of). The court will tell parents that they should communicate. It may even tell them how…disappointed it is. But it doesn’t have the power to compel them to do so.

No…there isn’t an easy answer here. But fight the battles you can win – ask the court to order what it can and don’t waste your time on something that is doomed to failure.

Appeals: A second bite of the cherry?

What can you do when a hearing hasn’t gone your way? And you can’t live with the result? It’s easy to think an appeal is the best way to try for a different outcome.

After all…you’ve got nothing to lose and everything to gain, right?

Thing is – that’s not what appeals are for. They’re not a second bite of the cherry; they’re not a legal way of saying to the man or lady behind the big desk `Oh, go on sir/madam – change your mind for me!’ Appeals are quite rightly difficult. Otherwise everyone would be doing them wouldn’t they?

An appeal isn’t about asking the court to re-run the previous hearing, be it for contact, residence, adoption or anything else. Go to an appeal hearing and ask the court to change the contact pattern, reverse the adoption order, etc. and you’ll be met by a blank stare. You’re there to convince the court it has made an error in law – nothing else.

If you manage to do that you’ll get your chance to do that at a subsequent hearing.

It’s important to know this. Because without a game plan all you’re going to do is waste money, paper and a few ink cartridges on something that isn’t going to get out of the traps.

Your first thought should be when considering an appeal is Has the court made an error in law?’ and not `Can I persuade the court to come up with a different decision?’ You are going to need to fill in the right form (an N161), pay the right fee, get a bundle  (with the right documents) to the right court and do all of this within 21 days of the order (although this can be extended in certain circumstances).

You will need to be clear about what your grounds of appeal are.

If you don’t know what the above means and you still want to appeal that should ring an alarm bell in your head and you should seriously consider not bothering.

Appeals are deliberately difficult. Your one can be dismissed at the first hurdle. Or heard in court…and then dismissed. Or heard in court and the court decides that while your argument has merit the court would have made the same decision…and then dismissed. Either way the whole process is very slow. Even by court standards.

In many cases it quite honestly isn’t worth bothering.

But don’t let this bring you down. Depending on what is you’re seeking to achieve in the long run (as always think of the big picture)  it may well be worth trying a different tack. A fresh application for more contact. An application for a variation or enforcement. A different take on things if your case is still open.

Don’t appeal just because you don’t like the decision. You could be making more work and problems than you already have.

When you should ask for 50/50 shared custody

I can answer this in one word.

Never.

I can categorically state this is the case for a few reasons. They being:

  1. There’s no such things as `custody’. It’s a term that hasn’t had legal meaning since Milli Vanilli were in the charts; if you’re too young to have heard of them that should tell you something.
  2. You’re probably confusing the rights and responsibilities conferred by PR (Parental Responsibility) with where the kid in question spends his or her time.
  3. You may as well tell the court/CAFCASS/social worker/the ex’s solicitor `It’s my right! I’ve got a legal right!‘ Try THAT and see what reaction you’ll get (hint: It’ll probably be one you don’t much like).
  4. Because there is more than one way to skin a cat.

Guys…this is a HUGE red flag. As well as being seen to shout the odds about your rights you’re also demonstrating said rights are more important than the kids (dividing them up like the furniture or the CD collection as the old phrase goes), that you don’t know what you’re actually asking for and that you know nothing about the actual process.

Go ahead, all guns blazing and there is a good chance you’ll be asked all about it when that nice barrister is trying to convince the court that the judge shouldn’t make an order for that by asking you questions that’ll make you look nasty, selfish, stupid or hopefully (for him/her) all three. You’re making it easy for them (or me if I am helping your ex).

With this in mind the `take homes’ from this post are simple:

  1. Learn the terminology. It’s not about custody’ these days. It’s not even about residence’. It’s about `Who the child lives with’. They are just about the same thing, true – but you want your message to be clear and not open to (wilful) misinterpretation.
  2. Understand division of time and PR are like chalk and cheese. Where a child spends his/her time has absolutely nothing to do with rights and responsibilities under PR.
  3. Prove what you want is in the best interests of the child. The most common thing parents say when asked why this is the case is `Because it will show the kids both parents are equal’. The court won’t accept this. Don’t waste your time saying it. Seriously.
  4. Be patient. If this is your ultimate goal understand that it will take time – especially if there is no contact at all now.

I’m not saying I don’t think shared parenting is a good idea. Quite the opposite. But if this is going to be happen, avoid the obvious pitfalls. There are enough of those without making basic mistakes.

I wasn’t married to my ex- how do I get what I am financially entitled to?

Sooo…you meet, you fall in love, you move in. Happy ever after, right? Until it’s not.That day when one of you decides that l’amour is no more.

The  truth is that YOU ARE NOT MARRIED. In the eyes of the law you are simply COHABITEES. And this is when life gets a little more tricky. Take a deep breath and learn this universal truth that THE LAW DOES NOT COVER COHABITEES.

If you were married then all of your finances would be dealt with under the Matrimonial Causes Act 1973.

But we have children, a house together, a mortgage, loans together, savings together. What happens to those?

There is no quick fix to getting a remedy to any of the above and there are several laws that will help. I am going to break it down as simply as I can.

CHILDREN: You can make an application under Schedule 1 of the Children Act 1989 for financial provision for your child/ren. Don’t confuse this with child maintenance payments. Different thing entirely. An order under Schedule 1 can provide for a lump sum payment; settlement or transfer of property and periodical payments that are above the CMS calcs. These would potentially include school fees or if your child/ren are disabled and he/she doesn’t receive all or some of his/her disability benefit.

HOUSE: This can be settled under The Trusts of Land and Appointment of Trustees Act 1996 (ToLATA). This Act can decide who are the legal and beneficial owners of a property, and in what proportions. If the two of you cannot come to an agreement as to what to do with the property then an application under this piece of legislation may be the ticket.

Rule of thumb: Money follows children.

LOANS: So you both are incredibly in debt, you both have loans and credit cards. You may even have loans that Aunt Maude lent you for that kitchen or that expensive guitar you’d always had your eye on. You may have left the house and forgot to take your Ming vase.

A way that you could get a remedy for this under small claims court. Thankfully the Government have made this process fairly simple and you can make an online claim.

MEDIATION: None of the above should be attempted without mediation. Who wants to go to court? NO ONE. So it is in everyone’s best interests to see if an arrangement can be achieved without the courts’ involvement.

It can be a maze out there. It is far from straightforward. In order to obtain any kind of financial remedy after you gone your separate ways requires planning and picking which would be the right application for you.

4 ways to ruin your own case.

Don’t blame your ex – you are going to ruin your own case

Yes yes yes. Not you. You may do exactly the same as a million angry men or women before you but you are going to ruin your own case.

Because you’re special. Your case is unique.

I mean…I KNOW there have been many before you who have decided they are going to take the Family Justice system who have been chewed and spat out.

But not you.

Ruin your case - like putting broken glass back togetherYou may well have no contact at all but at least you told the judge like it was. And there was absolutely NOTHING he could say. That taught him! You may have a 91(14) barring order to stop you going back to court, a non molestation order that stops you contacting your ex, visiting your kids school and doctor. You’ve got a PIN and accepted a few cautions too.

But at least they all know you’re not playing THEIR game.

So – lets’ help.

What you’re going to ruin your own case

Social media. Post about what a b***h your ex is and your considered opinion about the CAFCASS officer. Or social worker. Or judge. Make sure you have pictures of your last night out with the boys and girls. And how weed should be legalised.

Make sure you tell everyone about your rights. How it is your right to see your kids. How it’s your rights to post whatever you like online about anyone at all (see above!) Mention the UN Convention of Human Rights at every opportunity.

Make sure you `have your say’ at every point. Your ex made 93 allegations against you? Go for it…you need to address each one in a 41 page rebuttal. Make sure the court knows that yeah – you DID give him/her a slap but that was only because he/she provoked you.

Pay for professional assistance and ignore every word you hear. Because your situation is unique – and your ex is the worst one in the world. He/she will say and do stuff that has NEVER happened before in the history of family law. Spend your time arguing with the person you’re paying cash and trying to convince them you’re right at every step of the way. Don’t worry about the judge reckons – he only makes the orders.

Don’t ruin it for yourself and your kids

We seldom provide promises round here. And we’re not providing one now – but if you want to do your best to snatch defeat out of the jaws of victory make sure you follow these tips.

You cannot control what your ex or the court does but you can control what you do. Take control of your own case and maximise your chances.

Call us on 01172 900274 or email us to find out how we can help you and stop you ruining your own case.

What does being `the resident parent’ mean?

What does this actually mean???

Every time someone has told me they absolutely, positively have to be the resident parent I have always asked `What will a residence order allow you to do that you can’t do now?’

I usually get a blank stare. Or told something that isn’t true. Often that’s by the other side’s solicitor or barrister. If it’s a parent it’s usually something about being able to call the police and get the kids back if the non resident parent refuses to hand them over.

Problem is that it’s not true – if you want the thin blue line to get involved you’ll need an Emergency Protection Order (form C11) – covered in Section 44 of the Children Act. Or they’ll have to be convinced the child will suffer significant harm if not removed (that’s section 46). Most they’ll do (or the most they should do is a Welfare Check).

Pro-tip: Don’t think about trying to use these except in very, very extreme circumstances.

A resident parent has precisely no powers to demand a child is with them other than going through the courts – they are in exactly the same position as a non resident parent. Which is why if you phone 999 and demand your children are returned you’ve got a good chance of being told to speak to your solicitor and/or take it to court.

So in light of the above I present you with a comprehensive list of things that a resident parent can do that a non resident parent can’t. Here we go.

  1. A resident parent can remove a child from jurisdiction for up to 28 days without the permission of the non resident parent.
  2. That’s it.

A non resident parent does need permission of the resident parent.

What’s the point then? Let’s be honest – it’s a nice title innit? You’re the RESIDENT parent. The main one. The boss. It doesn’t matter that little title means almost precisely nothing – doesn’t affect when your kids are with you, who is in charge, education, medicine or anything else like that. That doesn’t mean that many of the people and agencies you deal with will agree with me on this…but that’s their ig

So what do you do when you are faced with an ex who demands they get this title? Ask them (or their solicitor) What harm will the child come to if this order isn’t granted?’ Expect to be told something along the lines of It’s a well established principle’ (rubbish). `The law is clear on this‘ (Ask them which law – there ain’t one). `It reflects the reality on the ground‘ (irrelevant). `The order HAS to say who the child lives with‘ (no it doesn’t…).

The No Order’ principle states the court must start from the position that no order shall be made unless the court consider that doing so would be better for the child than making no order at all’– or in other words `Prove that an order is needed’.

Of course the `go to’ most solicitors will use for this is to say that such an order will make the primary carer (usually Mum) feel more secure if such an order is made which of course will impact the children.

So consider this. While a residence order is of little significance or relevance to you as a contact parent it is often the case it means a great deal to the primary carer.  With this in mind you can agree…or disagree that such an order should be made. You may wish to agree to such an order on the proviso that your goals for contact are agreed to. Otherwise you’ll have no option but to point out there is little benefit for such an order to be made.

(One final word – they’re not called `residence orders’ any more. It’s about Who the child lives with’. Same thing, different name – but `residence order’ is a little easier to say).

How do I stop my ex moving away with the kids?

We get this asked a lot. From our (own biased) point of view there is a good chance that following the separation of their parents a child will be moved a distance away from where they were previously by the resident parent (or since the changes in the last few years `The parent the child lives with’).

Please note this post only related to moves within jurisdiction (i.e. children habitually resident in England & Wales who are being moved away – including to Scotland and Northern Ireland. There’ll be a post about kids being uprooted to Australia and the like in the future).

Why? Well – it doesn’t really matter when you get right down for it, but the following jusitifcations are used:

  1. I want a fresh start somewhere new.
  2. I can move closer to my family and/or support network.
  3. I want to.
  4. Because my new partner has a job 400 miles away and he/she can’t get a new one.
  5. Because I have been offered a job 400 miles away and I get one anywhere closer.

So how do you stop them? The answer is `With great difficulty’. You’ll need to submit a C100 to ask for a Prohibited Steps Order – or a C2 for one as a variation if there is a live case.

If you are a non resident parent (as was) don’t think a contact order won’t effectively be torn up will stop a move. It will be if you aren’t careful.

If it results in contact reducing or stopping the court won’t care. It will probably not order the resident parent to do the travelling either…that’ll be down to you. Like it or lump it. Which means the onus is on you. Your options are therefore:

  1. Make an application for a PSO (recommended).
  2. Make plans to and follow through with moving too (recommended).
  3. Accepting a reduction or stopping of contact (guess)

Don’t get me wrong. You will almost certainly fail in your bid to get a PSO granted. It does happen but don’t count on it. Hope for the best, plan for the worst and all that. Use the time that the application takes to do your research. New places to live, new places to work, support networks to build. Applying for a PSO will do the following:

  1. Give you extra time.
  2. Give you more information about what is going on.
  3. Register your disagreement with the move (not doing anything counts as agreement, kids!)
  4. Provide you with additional evidence of the hostility towards you (if that is the case).

So what are good reasons to oppose a move?

Your children will be uprooted from their family. From their school. From their friends. From the home they have known for so long. To an area they don’t know filled with people they don’t know. This argument is stronger if your children have strong links to the area they live in – lots of friends, families, activities and an education that will be disrupted by being removed from one school and placed in another (particularly if exams are in the offi

As always, use the Welfare Checklist as your guide.

And as always the above is all about judgement. Which is where we come in.

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