4 of the biggest myths in the Family Court

As sure as night follows day, the same misunderstandings about how the Family Courts work will be stated, restated, restated again and for good measure retweeted/shared/argued about.

Disregard this sort of thing and you’re not going to help yourself.

The sad thing is that many of them make things harder for people going through the whole process. It makes them do things that don’t help anyone (including their kids) or themselves, pitches them into conflicts that quite frankly aren’t worth happening and generally case trouble. Even if you know these but if the other party doesn’t it will often lead them to act in a way that seems irrational and counterproductive.

There are far more than 4 myths that do this (and I would put money on the fact I’ll be adding more of them as time progresses) but here are some of the `best’.

So here goes…

No.1 – If you have a residence order you can phone the police to get the kids back if your ex refuses to return them.

No. It. Won’t. Phone your local station and say this. Try it. Forget for a moment that this sort of dispute and the police only deal with criminal matters – not civil ones (bit of a spoiler really…).

You: Hello police? I’ve got a residence order and my ex won’t give me the kids back! Can you go round there and take them off him/her?

PC999: Do you have any welfare concerns?

You: Not really, it’s just that I’m the resident parent and he/she is breaking a court order! They should be with me! I’m the main parent!

PolicePC999: OK…not much we can do I am afraid. You need to speak to your solicitor to take the matter back to court. Tell you what…we’ll go round there and advise him/her to hand them over and do a welfare check but that’s all we can do really.

That’s if the police follow the rules, mind. I do know of a couple of cases where officers have removed children without an Emergency Protection Order or without sufficient welfare concerns….and they have found themselves having a very serious chat with the Inspector about how removing kids from parents with PR without good reason tends to go down very badly.

So the moral of this story kids? Don’t think a residence order will stop your ex taking the kids.

No. 2 – An enforcement application will get your ex to abide with an order.

I hate to be the bearer of bad news here – because going back to court is kind of the only option you have if your ex decides he/she is going to ignore the damn thing. Statistically you have less than a 1 in 50 chance of an enforcement application succeeding.

What normally happens is you will make an enforcement application…and your ex will  justify breaking the order by saying it isn’t working. What he/she should do of course is talk to you about agreeing a change to arrangements or making his/her own application for a variation. But seeing as that’d cost him/her £215 it’s much chearper and easier just to say I’m changing things. If you don’t like it – tough’ compelling the non resident parent to either say a) `Yes OK’ or b) Filling in the c79 and paying the fee himself/herself.

Followed by your ex seeking to hijack your application and turning it into a variation matter. This happens in a depressingly high number of situations this is what happens. Should you decide to apply for a penal notice don’t think one will be ordered either. You are more likely to be accused of trying to punish your ex.

No. 3 – If you get married your new partner automatically gets PR.

Nope nope nope. Doesn’t work like that. A stepparent has no legal relationship with a stepchild. None at all. If they want PR they’ll either have to get the agreement of everyone who has PR already. Or a court order.

That’s it.

No. 4 – When it comes to financial matters in divorce you get out what you put in.

Again…no. Not true. Consider the following assets and liabilities:

  • The large family estate consisting of a portfolio of properties in the UK that William the Conqueror gave to a distant ancestor of yours.
  • An eye watering credit card bill incurred by your ex as a result of the luxury cruise he/she had to take to get over your separation, comforted only by the new partner he/she left you for.
  • The money earned by your business that you’ve slaved for while your ex has sat on velvet cushions and ate chocolates.

Mansion BuildingIt doesn’t matter where the money came from. Or where it went. Or who earned it. Or who spent it. All assets and liabilities go into the marital `pot’ and are divided up according to need. Remember though – money follows the children. Their needs come first.

It’s also worth remembering that as we’re talking about the Matrimonial Causes Act 1973 (and not the Children Act 1989) behaviour isn’t a factor in most cases. So attempting to tarnish your ex’s character seldom makes any difference.

Take the time to learn the basics here. It’ll likely save you a lot of heartache and also give you some perspective on your own situation.

telephone handset

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.

Don't hide in your bunkers - communicate!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.

Talking to a brick wall? Communication is key!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?

CherryThing 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.

ColorGuys…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.

Slip Up

4 ways to ruin your own case.

If you represent yourself it is as much about what you don’t do as anything else…

When you represent yourself you need to avoid the obvious banana skinsYes 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.

You’re going to represent yourself. You are going to damage your own case long before the ex or his/her solicitor utters a word.

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.

You 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.

Represent yourself badly and you'll be picking up the pieces

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.

Represent yourself – you have the power!

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.

There are far more than 4 ways but these are the best ones….

If you represent yourself it is in your hands. As the old saying goes…with great power comes great responsibility!

`Resident parent' doesn't mean `First prize'

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.

Many people see resident parents have `won' first prize in a court caseWhat’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 ignorance and not based in law.

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 and everyone still calls it that in court).

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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When should I go to court?

There’s a golden rule when asking yourself this question and the answer is really quite simple. It is:

Go to court when it is liable to make things better than worse.

Its’ not rocket science. Court isn’t known or meant to be a fun place – just about anywhere is better than in a court building. Unless you’re somewhere like the Royal Courts of Justice (where these is a Costa stand) the coffee is pretty awful to start with.

But seriously.

If there is any way of getting recourse rather than relying to the nice man or nice lady behind the big desk to sort out the whole sorry mess you really need to give it a go. If it means being nice to someone you’re not particularly fond if, do it. Arrange mediation with them (don’t ask them…arrange it and go). Communicate – writing or emailing is best – to see if you can come up with something that you may not like but at least can live with.

If it turns out none of the above don’t hesitate. Contact us and we’ll tell you whether we think going to court is the best option. If it is…don’t hang about. If you want to change something, a status quo is your biggest enemy.

As Mr Shakespeare wrote in the Scottish play `If it were done when ’tis done, then ’twere well It were done quickly’ (Act 1 Scene 7).

Many people hold back from going to court because they believe it will inflame the situation or maybe the other party will calm down enough to resolve matters. That’s a mighty big gamble when the clock is ticking an a status quo is being set – and you risk hearing that you must have been fine with the current setup or else you’d have done something about it sooner.

In other words…if going to court is the best option, get on with it. Nothing to be scared of either if one of us is by your side…

Help! My ex has changed my kids’ names!

It’s amazing how often this comes up. And how many people will justify this. And will argue the toss. But this is a very simple one.

Names of children. A rose by any other name...?When can someone change the names of children? Here is a comprehensive list detailing every way a child’s name can be legally changed.

  1. With the agreement of everyone who has PR for the child.
  2. A court order saying so.
  3. That’s it. There is no number 3.

Simple, eh?

This subject comes up with a weary inevitability. So do the people we speak to who have this problem. We’ve had 2 today so far which is why this post is on this topic.

Pro tip: Deed polls don’t count. They’re not worth the paper they’re written on, especially so if there is lots of gold leaf, excitingly-shaped edges, fancy writing and lots of legalese that makes it look very, very important. If you have one for your child…you’ve wasted your money. If you have one and you want to do it legally you need to go to the Royal Courts of Justice to `enrol’ it…and you’ll need one of the extensive list above to do it.

Otherwise you may as well not have bothered.

Now I know what you’re going to say `Ah…my kids have a legal name and a known as’ name. So it’s OK’. Nope. Doesn’t work like that (unless you’re in Scotland and then it does).

Or you’ll say `I told the school/doctor/whoever and they were fine with it’. That’ll be because they don’t know or don’t care about the law. It’s probably the first one out of the list. Getting away with something doesn’t mean it is legal.

Or possibly `My kids chose to be called by their name’. Doesn’t matter. Check the list above.

Or maybe `The other parent isn’t about – so I can do what I like’. No. You’ll need to go to court to get an order in that case.

So what do you do if you find yourself in this situation? As always the first piece of advice is `Don’t stick your head in the sand‘. And as always the longer you leave it, the harder it gets to change things. As soon as you learn this happened contact the school, the doctor, where ever else and ask them to change to your kids’ real names. Maybe take their birth certificate in. Explain firmly but nicely what you would like to happen. If they do and it is left at that…great. You don’t need to do anything else.

If not…it’s time to go to court. You’ll need to make an application for a Specific Issues Order.

So it’s as simple as that. Either way – and I am aware I am repeating myself here – doing nothing is just about the worst thing you can do. A stitch in time and all that, OK?

Finishing Line

Contact Denial – What to do and not do

Contact denial is one of the most common matters dealt with in the Family Courts. It’s the most common reason a non resident parent reluctantly fills in the forms (usually a C100), pays their fee and sends it in.

The anatomy of contact denial

Right off the bat, let’s establish something fundamental.

Anyone denying contact between a child and someone who has PR for them without a court order preventing it is acting with no legal basis whatsoever.

Being the primary carer, resident parent, mum, dad, whatever doesn’t confer the right to tell someone who has PR for a child that they can’t see them.

The circumstance of how contact is denied varies however. There is no set pattern. Sometimes they haven’t met their child since birth. Or they had been permitted a sporadic and limited relationship which has ended. Often contact has stopped suddenly and without warning.

Why does contact denial happen?

And the justification for this? I don’t like your attitude. The kids don’t want to see you. You’re a bad parent. I don’t have to let you see them without a court order. I don’t like your new partner. My new partner is daddy/mummy. You’re not paying me enough cash. Or something else.

So…as a parent facing a scenario like this what you do?

Delay is the worst thing you can do if you are facing contact denialThe first step is do not delay. Doing nothing is just about the worst possible thing you can do. It won’t make anything better and it will quite possible make it worse.

In our experience things don’t get better on their own – they don’t `blow over’

Instead what happens is a  a status quo of no contact is set and the contact denier feels emboldened that they are able to continue with this course of action without problems. If you do nothing they’re right of course.

No one cares about contact denial apart from you

And the longer you leave it the more irrelevant any kind of previous relationship you had becomes. Seriously…the court won’t care that you were the resident parent and it’ll care less the longer you do nothing/write a letter/organise mediation/compose your latest symphony.

The moment contact has been denied address it. Organise mediation ASAP. Organise it. Don’t text your ex to see if she/he will attend. Because you won’t get an answer. Or they might be able to make it in 3 months time. Maybe.

FlagIf the place is open now (Google is your friend) stop reading this blog right now and phone them. If it’s out of office hours do it first thing tomorrow. If it ends up in court you’ll be required to attend a MIAM (a `Mediation Information Meeting) in any case. And besides it’s always worth trying on the grounds that court should be the last resort.

If (or when because more often than not it either fails or doesn’t happen in the first place, you’ll need to submit your form to start the whole process.

But the take home here? Do not delay.