[Solved] Broken Order

Hi

I'll leave this to those with more legal knowledge to answer fully, but in brief, you can apply to the court for a variation in the order for the daughter to reside with you permanently - there is no guarantee you'll be successful, so you need to be prepared for that, but at 13, your daughters wishes will be taken into account and your ex's boyfriends actions certainly aren't going to help her argument.

Hi Mark

It's a difficult situation for you both. In my opinion I think you need to act on this and apply for an emergency Prohibited Steps Order to prevent your daughter from being taken from your care. The fact that there has been an assault will definitely help your case, especially as your daughter was witness to it. You can also ask that the ex's partner be prevented from having future contact with your daughter, as you feel their relationship has deteriorated to such an extent that it is damaging your daughters health and well being, as has already been evidenced in the previous case in 2015.

You can also apply for your child to live with you full time on the same application., form C100. If you are intending to use a solicitor, they will take care of this for you.

Form C1a will also be a requirement to inform the court of the serious risk of harm that there is for your daughter currently. This also covers emotional and psychological issues.

I don't think writing to the court would be appropriate, as your last case was back in 2015 and has been closed for a while. They are likely to advise that you make a fresh application, so it would just be a delay.

The reason for an emergency application is partly because you don't then need to attempt mediation first, and because I think your daughters situation warrants it.

It is perfectly acceptable to go against an order if the child is at serious risk of harm, so I wouldn't worry about this aspect. You mention that the order gives 50/50 shared care, does it state in he order that the children live with mum on xxxx and live with you on xxxx,or does it specify that the children live with mum and have xxxx contact with you?

If you have any questions please don't hesitate to ask.

Best of luck

I know you have said the police are investigating but I would have thought that you are well within your rights to apply for a Non-molestation order to prevent the ex's boyfriend from coming within a couple hundred metres or so of you/your house.
I know it works the other way around even with no evidence to back them up!

Agree with Mojo - I would apply for an emergency hearing - this will also cover you for being 'in breach' of the order.

With regard to the assault - I would pursue this with the police but also mention at the emergency hearing.

Thanks for all the quick response 🙂

Slight misunderstanding, it was my ex wife's step dad that assaulted me, not her boyfriend. I gave my statement over the weekend to the police who's already been to see the neighbour that witness the event, copper was a lovely bloke who's also got a daughter aged 13 so could sympathies with the situation . I've known the step dad for years and could forgive him, but him reacting like that knowing my daughter is the house, something has to be done.

If it was the ex boyfriend that assaulted me, and as he is living with the ex, I wouldn't allow the children back to mums and would be in court already!

Mojo.. massive thanks for the advice, it seem like the right action to take. I'm going to go see a solicitor as I don't think I have the right personality to self rep. I'm confident enough and articulate my point but I'm too much of a walk over, particularly against a seasoned barrister. Just set up a company, to pay off the first time I was in court 🙂 ... so need to keep on top of that too..

The order states the children reside with me every Sunday, Monday and Tuesday night. Every other Saturday they come back to me and I have them four days straight, Works well and they are a minimum number of changes during the week. difficult as I only have two Saturdays a month and the rest are school night, but I would recommend the arrangements.

Just giving this a little more thought.. knowing my current arrangements, my daughter is pretty much demanding to spend more time with me. She a really good kid, top set for all her subjects, on the school council and well liked by her friends and teachers. I do most of the school week so very involved in that aspect of the kids life. Boy is happy with the arrangements so I wouldn't want to change that.

1. If I apply for a PSO, and keep our sons arrangements are they are, would that hold any weight? my daughter is refusing to go back to her mums.

2. As well as step dad assaulting me, he was shouting at the top of his voice that I should punish my daughter for not going back, she obviously apprehensive with going back to her mums. I have been trying to maintain contact between mum and daughter, asked ex to call, take daughter out for tea or lunch, several times. Ex is replying saying that daughter should get in touch to arrange it with her! wish I could attach screen shots on here 🙂 ... mums trying to push it all onto me, rather than acknowledge that there's a problem with the boyfriend and deal with the issue and listen to daughter concerns.

3. Is there anything I should (or should not) be doing to protect myself from the breach of the order, come Wednesday, I fear I will be in the same situation where daughter is refusing to so to her mums.

Again, huge thanks guys!

...sorry for the misunderstanding about who assaulted you, but it doesn't really alter the advice I gave.

It's a difficult one really and it's a pity that your ex can't be the grown up and work with you and your daughter to find a way through this.

I get the feeling you would like to avoid court, the other option you have is to instigate mediation first and try and resolve the issues that way, if no agreement is reached then the mediator would sign off the form to allow you to apply to court to vary the existing order.

As your son is happy with the status quo, there would be no reason to interfere with the current arrangement with him, as far as it giving weight to your PSO application, I don't think it would. Courts are often loathe to split siblings and this may have been the reason why the judge in the last case in 2015 didn't make changes, when there was plenty of good reasons for changes to be made.

The fact that your daughter is now 13, her wishes and feelings would carry more weight this time round though. As before, CAFCASS would be involved and she would get the opportunity to have her say.

Because of the assault, your daughters point blank refusal to return to her mothers and the fact that the existing order states that your children live with both of you, which gives you residence as a shared care arrangement...because of this, it's very likely that an interim order for you daughter to remain with you would be made if you applied for an emergency PSO. Of course there are no guarantees on what the final order would be, but the longer your daughter resided with you the greater your chance of the interim order being made final.

The relationship between your daughter and ex is sad and it's right to try and encourage them to try and sort things out. Perhaps you might like to consider family counselling, I think Relate offer this service....it might be a way forward and gets things out in the open. At 13 your daughter is beginning to know her own mind and should be listened to, couselling may provide an environment where she and her mother can be helped to understand each other better and find solutions. Here's a link

www.relate.org.uk

If you were to try and get something like this started, or at least state in court that this was your intention, I think they would view this favourably, as you are putting your child's well being first, as well as being respectful and trying to encourage her to restore her relationship with her mum.

All the best

Thanks again Mojo for the advice, that's both sound and gives me a real sense of grounding, can not tell you how much it helps! 🙂

You're right to think that I would prefer to avoid going to court, I'm frustrated with them for previous decision, part of me knows that daughter would be building more and more resentment, with the situation, the courts and unfortunately her mum. Which isn't healthy for daughter and everyone involved.

Went to see the solicitor today, as daughter is meant to go back today and puts me back into breach. Shockingly he was actually pretty decent, spend an hour going through my situation, I was happy with the service and offered to pay for his time, he told me no need! Saying I incurred 15 grand of debt first time around, couldn't believe it.

Really briefly the advice he gave:

1. If I was going to go back to court... to apply for an emergency interim variation order, apparently that's a thing! He advised against an emergency PSO, even with the assault as there's still not enough grounds in my case for that to likely be a success.

2. As daughter is old enough to make her own decision, there's nothing you can do if she completely refuses to go. Said keep making an attempt to get daughter and mum to reconcile. Which I have genuinely been trying to do.

3. His advice is to wait it out, If ex goes for an enforcement, to go in with a C2 and apply for a variation. The enforcement could take 3/4 weeks until the hearing and that will give me time to prepare.

If I'm honest I don't want to be the first one to draw blood. Ex and daughter relationship still deteriorating, but hoping it will bounce back sooner rather than later. Obviously still getting all the blame form the ex, but she has to see that the problems is on her side at some point.. anyway I'm starting to go on a rant 🙂

Oh.. asked the ex if she would attend Relate, with the three of us, or just with daughter, offered to pay for sessions and asked her to think about it as I felt it's worth exploring. Hopefully something positive comes from it.

Thanks again everybody for taking the time to reply!

Will keep you updated and share anything that maybe useful...

It is perfectly acceptable to go against an order if the child is at serious risk of harm, so I wouldn't worry about this aspect. You mention that the order gives 50/50 shared care, does it state in he order that the children live with mum on xxxx and live with you on xxxx,or does it specify that the children live with mum and have xxxx contact with you?

Just reread your post...

According to the solicitor this does make a difference, it was something he brought up.

If the order states shared care and they live with me xxx and mum xxx... or live with mum and contact. If it says xxx, then I'm not completely in breach as its mum responsibility to ensure they are with her. If it said live with mum and contact.. then mum has a responsibility to make sure they're available. Sounded a bit odd, but sort of made sense.

Being in a shared care arrangement, helps me with my situation. If I had full residence and mum got contact, if I was in breach in that scenario, it would be worse from a order\contractual perspective.

Thanks for the update Mark.

I haven't heard of an emergency variation before and in situations similar to yours the fall back position has generally been an emergency PSO to prevent removal of the child by the other parent, at least until the issues have been investigated, facts gathered and a decision made. Obviously though, I'm not legally trained and I defer to your solicitor.

The wording on orders can be ambiguous and because you have a shared care arrangement, where the children have two homes and reside with both parents, and you have made the child available to the mother, a breach would be a grey area.

I do hope that the mother seriously considers taking you up on your offer of paid sessions with your daughter, or with you involved too. Did you make the offer verbally, or do you have some written proof that the offer was made, such as txt or email. I only ask because where Court may be on the agenda it's good to have a record of actions taken to find resolution, prior to court action being taken.

All th best