[Solved] ex partner claiming domestic violence need advice

Hi thanks for your post I think it is different in Scotland my solicitor has given me legal aid forms to fill in and gave me the website for the legal aid calculator to get an idea of what I need to pay and it is only a small amount that I have to pay so should be ok for help with legal aid.

Kind regards.

Hi,

Mediation is completely out of the window because of DV allegation. Your earlier suggestions of your ex behaviour like trashing a neighbour's car etc does not have any value unless you can prove it with evidences. Think of situations where she's lashed out and there have been witnesses. Spend time thinking of how you can invalidate her exact allegations with evidences e.g. if she said you were at home taking drugs but were actually on holiday abroad and you do not take drugs by means of test results produced, that sort of thing.

I learnt the hard way after paying for barristers only to find it would have been easier to either accept the allegations completely or accept partially (ex has exaggerated a situation to misrepresent the case) instead of trying to disprove them.

The dilemma you might face in delaying ownership of the allegations, assuming they are not too serious and would not bar contact (counsel should advice accordingly), is there may be further hearings and adjournment whilst you are away from your child. These could go on forever without the main issue addressed! This does not mean that you should quickly admit if you have no case to answer.

My advice, during conference with counsel, focus on the key case facts. If you can produce good evidences to counter then fine else putting your hands up might be the easiest route to immediately commence supervised contact.

Im afraid I would never advise someone to admit to anything they were innocent of and I doubt a solicitor would advise this either.

Scottish family law is different to the law in England and Wales, the law reforms of 2014 don't apply so mediation isn't mandatory before court action anyway. Mediation would be possible,with the parties sitting in different rooms and the mediator moving between them, this is called shuttle mediation.

This may help...

I remembered this recent post and have copied and pasted it for you below.....

Child Arrangements after Separation – Scotland

Parents have equal rights and responsibilities for their children, as defined in section 1 of the Children Act (Scotland) 1995:

Parental Responsibilities:
To safeguard and promote the child’s health, development and welfare
To provide, in a manner appropriate to the stage of development of the child, direction and guidance
If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis
To act as the child’s legal representative.

Parental Rights:
To have the child living with you or otherwise to regulate the child’s residence
To control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing
If the child is not living with you, to maintain personal relations and direct contact with the child on a regular basis
To act as the child’s legal representative.

Who has Parental Responsibilities and Rights?
A biological mother will automatically have PRR, regardless of marital status.
A father automatically obtains PRRs in two situations –
1 – Where he was/is married to the child’s mother at the date of conception or any time thereafter
2 – Where the father has not married the child’s mother he will automatically obtain PRRs if he is registered as the child’s father. This rule only applies on or after 4th May 2006, which is when the Family Law (Scotland) 2006 came into force.
Unmarried fathers registered prior to this date do not obtain automatic PRRs. However, PRRs can be obtained either by way of a formal agreement with the mother or by making an application to the sheriff court or Court of Session under s 11 of the Children (Scotland) Act 1995. I have recently blogged about the continuing disadvantage of unmarried fathers

Agreeing Arrangements for Children:
It is recommended that separating/divorcing couples try very hard to reach an amicable agreement as to the residency and contact arrangements for the children. A useful tool is the Scottish Government’s Parenting Agreement, which can be downloaded from the Scottish Government’s website

If you are having difficulty reaching agreement then, before rushing to the lawyers, it is well worth trying to use the available counselling or mediation services such as those provided by Relationships Scotland.

If you cannot agree on the arrangements the matter can be settled by the courts. Any application for an order relating to parental responsibilities and rights must be made under section 11 of the Children Act (Scotland) 1995.

If there is a dispute in respect of children and the action is being defended in the sheriff court, the next step in proceedings is a Child Welfare Hearing. The sheriff may also order such a hearing in other instances where they consider it appropriate.
This is intended to bring about the quick resolution of disputes about children, proving that this can be done in a manner consistent with the child’s welfare. All parties are required to attend the hearing personally and are under a duty to provide the sheriff with as much information as possible so that he or she can take whatever steps necessary to deal with the matter.

HEARINGS

Option Hearing –

An Options Hearings is purely procedural and the sheriff has no power to make an order. Instead he/she is trying to make an informed decision as to what should be the next step in the court procedure. The Options Hearing is intended to give parties a chance to meet before the sheriff in order to ascertain if agreement can be reached without proceeding to a CWH or, if this is not possible, to focus the precise disagreement between parties.

Child Welfare Hearing

A Child Welfare Hearing is a fairly informal affair, intended to bring about the quick resolution of contact disputes, aiming to resolve the problem(s) and bring about agreement, if at all possible. A child welfare hearing is fairly informal and usually held in private, with only the parties and their legal representatives and the Sheriff usually being present. . The child’s welfare will be the court’s paramount consideration.

The sheriff will ascertain from parties, or their solicitors if they are to be represented, what matters are in dispute in relation to the child. Parties provide the Sheriff with information relating to the issues in dispute.
Solicitors (or the party litigant) put each side’s case to the Sheriff, then after discussion, if an agreement can’t be reached, the sheriff will set out a timetable how to proceed. The sheriff may make interim orders, or refers both parties to a family mediator, like Relationships Scotland.

If parties are unable to reach agreement, disputes may have to be decided after often lengthy and expensive ‘proof hearings’ where the parties give spoken evidence and are subject to cross examination, and where witnesses may also be called to the hearing to provide testimony, or supply a written affidavit.

Under Section 11(7) of the Children Act (Scotland) 1995, the court shall, so far as it is practical, take into account a child’s age and maturity, and the court will give the child the opportunity to express his views and thoughts, should he wish to, and give due consideration and regard to those views the child expresses.
A child is also entitled to his own legal representation if necessary. The action is required to be intimated to the child, and his views must be taken into account by the court. Usually, a child aged 12 years or more will be considered by the Court to be considered of sufficient age and maturity however, it’s possible for children younger than 12 years to present their views to the Court, if they have a formed view.

A child’s views may sought and represented in a number of different ways: the Sheriff may interview the child in Chambers privately, without parents or a third party being present, or the child may be invited to attend the hearing, or a bar reporter may be appointed by the Court in order to obtain the child’s views.

The most important factor in any decision by the court regarding children is the consideration of the child’s/children’s welfare – this is paramount at all times. (See section 11(7) of the Children Act (Scotland) 1995). The Court would also consider those involved in the application, ie the mother and father. While the mother, by de-facto, has a relationship with the child, the onus is on the father to prove his reasoning for either applying for or for defending the application, so motive would be a consideration. The courts would consider if those involved, ie the parents are able, or will be able, to co-operate with sufficient willingness.

The Courts may also consider the arrangements for the non-resident parent to see their child/children, if the resident parent doesn’t agree with the contact arrangements; the Court may make a Contact Order. Other factors are: the domestic living arrangements of the child currently in place, the person/parent best able to meet the daily needs of the child/children, the working arrangements of the person applying for the order, and whose arrangements are most conducive to the primary needs and care of the child, and in the case of very young children, the Court makes the assumption that the children are better left in the care of the mother – however each case is based on its own merits, and the suitability of all parties is considered.

Contact orders

Where courts are required to and do make decisions, parents must stick by them. These decisions are enforceable. If a parent fails to obey the terms of a Court Order he or she could be held to be in contempt of court and liable for punishment for that contempt.

Court decisions on children recognise the possible need for change. Where a parent applies to vary previous decisions, courts normally require that the parent should demonstrate that the change in circumstances was important (or ‘material’). The person seeking change would have to satisfy the court that the best interests of the child would be served by altering what had previously been decided. Although ‘ Parental Agreements’ may be new to the courts, they would almost certainly approach them in the same way. Any change would have to be in the best interests of the child.

Here's a link to the Scottish arm of the childrens Legal Centre

http://www.sclc.org.uk/

They may not be able to advise you though if you tell them you have a solicitor.

Hi thanks for all your reply to my original post they have been a great help to me I spoke with my solicitor on Tuesday and she seems to think I have a good case. So I text my ex a civil text on Tuesday that's the first I have text her in a while was just to say that I was going threw with court and that it was a last resort for me and that I didn't want to put us threw court and all the stuff that comes with it and next day I got a call from her at work and she said she doesn't want to go to court and agreed that I should see my son again and she also wants to try and sort things out in the long term for our relationship so I'm a bit confused on what to do I feel let down by her with her claims for Dv and still don't know why she said that well obviously it was to stop me getting my son but don't know what the reasons for her not wanting me in my sons life she said she was angry at me for leaving so think it could be that. When I seen my solicitor I filled in all the legal aid forms and they said it would take 4 weeks to get a reply from them so was just going to wait to see what happens in the next 4 weeks before I make any decisions but I'm hoping I won't need to go to court and can sort something out between us for access to my son now so thanks to everyone who replied to my post your advice means a lot and helped me threw a difficult period last week i was going out of my mind with her claims so thanks again to everyone who helped.

Kind regards.

Good fortune CFC,
Best wishes.

That's a move in the right direction, it's always better for everybody if court can be avoided. Lets hope that over the next 4 weeks you can both reach agreements that you are both happy with....sometimes all it takes is for the mother to realise that there's a bigger picture, to start putting the needs of the child first.

Best of luck with it and do come back and let us know how you get on.

Good luck with attempting to resolve this without the courts,

Over the next 4 weeks, keep a log and account of everything...bear in mind anything may be used against you if ex's solicitor is advising her to make claims of harassment (am sure they would not think like that !!!)

The log will also include conversations about promoting contact - establish this pattern and the courts will (hopefully) see that you as parents want the best for your child/ren.