5 FAQs – Children Disputes

Faq boyThis is the first in my summer series of Frequently Asked Questions that I will be addressing around children disputes.  Hopefully, this will go someway in unravelling the issues that many parents face regarding their children following a separation.

o       My wife has left me and taken the kids, I’ve no idea where they are!

If this happens, you can go to court and make an application called Disclosure of the Whereabouts of a Child.  In this application you will be asking a named body to provide an address for the child or for your wife.  For example, HMRC or the Benefits Agency is likely to have up to date contact information for anyone claiming a benefit, working or self-employed.  So, you could start there.

o       My husband just called to say that he is emigrating with the kids!

This is a very scary situation to be in because once you’re children have left the UK it is virtually impossible to enforce a UK court order.  You need to take urgent action.  An application can be made to the court for a Prohibited Steps Order.  You will then need to send copies of this Order to all ports out of the country (airports, seaports etc).  If your husband has already left then you will have to take action within the country he is now in.  In either case you should seek specialist advice to avoid life-changing delays in taking action.

o       My child has been staying with me and now says he doesn’t want to go back to his mum’s.  Do I have to force him?

This is a difficult question and depends on the particular circumstances.  I would say that both parents need to co-operate in this type of situation. Children often don’t mind whether they live with mum or dad so once they feel settled somewhere they may feel too relaxed to move again.  Understand why the child doesn’t want to go home.  Does he just want to enjoy one more night at your home? or does he have a fear of returning home? Different problems call for different solutions.  If the child just wants to spend one more night at yours then ask mum if that will be okay.  But if the child has a fear of returning home then you will need to assess whether there is real danger or is it just a question of not liking the method of discipline at home? If there is a genuine risk of harm you should discuss this with the other parent.  If an agreement cannot be reached then you should refer the matter to court urgently or the other parent could do this without you knowing and without giving the court the full picture.

yellow school signo       My girlfriend has told the headteacher not to let me near my child at school. What can I do about it?

Once a relationship breaks down it is common for one side to set about forming a band of supporters.  Among this can be getting the school headteacher on side.  It is best to take swift action to stop this becoming a major obstacle to you contributing in your child’s school life.  But at the same time I would suggest gentle action.  So you need to understand exactly what your rights are and, if court proceedings have started, what Orders have been made.  Often fathers don’t realise that they have parental responsibility and are therefore perfectly entitled to engage in their child’s education.  Also, although court proceedings have started and are well underway often, no court Orders have actually been made in favour of father or mother.  So make sure you know what you need to know so you can lawfully assert your rights at every step.

o       My wife and I have just separated and she won’t let me see the kids.  What can I do?

It’s no surprise that by the time a couple has separated, feelings are running high and bitterness has set in.  Typically, the husband moves out of the house and leaves the mother alone with the children.  No clear plans have been put in place regarding the children and the mother is left to just get on with it.  I would say this is a crucial time to maintain the status quo as regards the children.  If you usually do the school run, or some of it, then continue to do so; if you usually help with out of school activities, either by watching the other children at home or with the driving to and fro, then find a way to continue helping with this.  Remember also, how expensive it can be bringing up children.  So try not to just cut off any financial contribution you were making when you were living together.  Obviously, you will now have your own separate expenses but try to remember all the little things that add up.  It’s the extra things like paying for school days out, endless non-uniforms days, unexpectedly having to replace lost clothes and even shoes!  So try not to stop helping with all this without discussing it first.  This is not legal stuff, it’s just tips to set the foundation to build your future “two families” lifestyle.

So you will be taking this time immediately after separating to establish that you will be parenting the children together.  During this period, you should also be discussing long-term arrangements for you to see the children.

If this cannot be agreed then you may need to use a third person to help with your discussions.  You might find that it is impossible to find someone who is objective enough or who has the skills to help you resolve the issues between you.  You can look then to getting professional help from a relationship counselor or a Mediator.  You should, hopefully, be able to arrive at an understanding that you can both live with and which suit the needs of your children.  However, you can only ask the other parent to attend Mediation but s/he is not obligated to do so.

If you’ve worked your way through the above process but still have not been able to see your children then, as a last resort, you should refer the matter to court.  You will be asking the court to make an Order that you can see your children.  This Order will set out the minimum amount of time that you should spend with your children.  Going to court may be your only option but it is not one than should be taken likely.  Children disputes at court are extremely stressful, very expensive and can create permanent bitterness between the parents and even wider family members.

If you do decide to go down this route then you should get your application into court quickly to avoid delay.  If there is a long delay in you seeing your children then the court can be persuaded to conclude that the children no longer remember you.  If contact is agreed or Ordered in such circumstances it is likely to be set at a Contact Centre.  Contact Centres are public places designed to help estranged parents re-establish their relationship with their children.  Parents report that it feels like an artificial setting and it is a difficult way to interact with children of any age in such an environment.

So from the outset, if representing yourself, you will need to have a working knowledge of the court system and have a good case plan laid out so that you can keep your case moving forward.

Well, that’s it for this week.

Look out for further blog posts of Frequently Asked Questions every Friday, or feel free to Get in Touch  to arrange a consultation or with a FAQ suggestion that I can answer in the next blog post.

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Want to use this article in your networks? You can, but you MUST include the following:

Rachel Toussaint is a Consultant Solicitor at Rogols Consultancy, Birmingham UK.  She is a human rights advocate especially as it relates to immigration, family law & civic duty.  She is also a consultant for small businesses and entrepreneurs. In her blog she shares legal tips to empower clients to quickly and effectively resolve their legal disputes. http://www.racheltoussaint.wordpress.com

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 Images courtesy of Free Digital Photos

From Shared Parenting to Parental Alienation

There are many ways to describe what is commonly known as shared parenting but essentially it is an agreement between the parents that they will exercise their parental responsibility over their child equally.

 It is widely accepted that shared parenting should be the norm unless there is a good reason why not.

 silhoutte familySo, ideally, then both parents will have an equal input in the child’s life.  One way that this can be reflected is in the actual behaviour of the parents.  Are they able to have a civil discussion about the child? Do they both participate in the school run and in attending school events?  Are the children able to visit the non-resident parent as often as they wish? Do the children have significant contact with the extended family members of the non-resident parent?

 If you can answer yes to all these questions and more like them then you have probably achieved shared parenting – and well done!

 If these questions are a long way off from what your child experiences then you should think about how you could enhance your roles as parents.

 Shared Parenting should come naturally to you as parents and, in my view, is far more favourable then what we, as Solicitors, often see – being parents arguing in court and then coming out with an Order that is neither flexible nor agreed.

 The reality is that even parents who live together do not spend equal time with their child so it will be totally unrealistic to expect this once a relationship has broken down.  However, in such instances parents may want to satisfy themselves that they both have equal quality contact with their child and one parent should not try to appear more important than the other.

A formal way to reflect a shared parenting agreement is to apply to the court for a Shared Residence Order.  Now, under the law, the court should not make an Order for a child unless it is absolutely necessary.  This reflects the presumption of what is known as “the No Order principle”.  So unless you’ve had problems in the past or seriously envisage problems in the future the court may not grant a Shared Residence Order, or any Order at all.

 A Shared Residence Order doesn’t mean that the children will spend equal time with both parents.  I would say that this is not in the best interest of the children – moving backwards and forwards between houses.  However, a Shared Residence Order often serves to remind both parents that they essentially have equal rights and responsibilities over their children.

 The concept of Shared Parenting should be the norm for the relationship that children have with their parents after separation.  Unfortunately, this isn’t always the case and many parents and children become separated due to the actions of the parent that the child lives with (the resident parent).  Often the resident parent makes claims of domestic violence or child abuse as a way of stopping the contact between the child and the other parent.  Sometimes, the only option the parent has is to refer the matter to court.  However, the courts’ hands are often tied during the process of investigating the allegations made and no contact takes place in the meantime.

 So what can you do to minimise the effect of this during court proceedings?

   father kissing daughter

  1. Firstly, make sure to control your emotions.  Minimise the amount of contact and conversation that you have with the resident parent.  Otherwise, you put yourself in a vulnerable position against further allegations and even the possibility of Non-Molestation (Injunction) proceedings.
  2. You will need to avoid delay and keep the case moving.  Think about instructing a Solicitor or other professional representative who can act as a buffer between having direct contact and give you specialist advice.
  3. Gather any evidence (or lack of it) that can be used against you.  So use your rights under Data Protection laws to obtain any information held about you by, for example, by the police or the Local Authority Children’s Services.  If no such information is held, you’ll want that in writing also.
  4. Gather written evidence of any activities you have been engaged in with your children, for example a letter from the school that you attend school events, from out of school clubs, from a leader in your church (if you go) etc.  You may need to use these documents throughout the proceedings at short notice – so it’s just as well to get everything together beforehand.

Remember, that delay is the enemy in children disputes.  The more time that passes since seeing your children, the more difficult it becomes to re-instate contact with them.  So, once you are clear that your case cannot be resolved amicably, the quicker you put it together and get it before the court the better.

I talk about avoiding court proceedings altogether here.

In a future post I will talk about using a Contact Centre if you are already going through parental alienation and need to re-instate contact as soon as possible.

                                    

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Want to use this article in your networks? You can, but you MUST include the following:

Rachel Toussaint is a Consultant Solicitor at Rogols Consultancy, Birmingham UK.  She is a human rights advocate especially as it relates to immigration, family law & civic duty.  She is also a consultant for small businesses and entrepreneurs. In her blog she shares legal tips to empower clients to quickly and effectively resolve their legal disputes. http://www.racheltoussaint.wordpress.com

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 Images courtesy of Free Digital Photos

Representing Yourself in Children’s Court

One thing that gives me a sinking feeling is when I get instructions from a parent struggling to see their children.  I almost never agree that it is proper to prevent one parent from seeing their children after a relationship has broken down.

If the dispute goes to court it becomes an expensive way to eat into your savings.  Savings that could be better spent on the financial needs of the children.  Often times, to avoid the costs of paying a lawyer, many parents decide to represent themselves at court.  This is very daunting as many people have never been to court before  much less for an emotive issue such as seeing their child.

It is, in my view, advisable to get professional representation when dealing with the court system.  However, for those who can’t afford it, I just wanted to highlight that good manners are very important when representing yourself in children proceedings – second only, I’d say, to a solid understanding of the law involved.

In a previous post I gave some tips on how to avoid court proceedings altogether.  You can find that post here.  If, however, you have no option but to go to court by yourself, you might want to bear the following 4 points in mind:

1) Don’t Involve the Children

The court takes a dim view when adults involve the child in the dispute between parents.  So that means; No name-calling, No searching questions; and No snide remarks about the other parent.   If possible, try to avoid talking to your child about the other parent.  It may help to work on set phrases that you can easily roll out if your child has any questions about the effects of your separation on their relationship with you.

2) No Multimedia

Many parents come to my office with some sort of pre-recorded evidence that they wish to show the judge.  In my experience, judges do not look at mobile phone footage during a court hearing.  If you absolutely wish to get your footage shown then think about taking a snap-shot of the most relevant part.  If you attach it as a photograph to a statement explaining what it is then you may have more luck with introducing it into the case.

3) Ask permission

In children’s court most actions cannot be taken without the court’s permission.  So you usually cannot just send in Statements or more evidence without asking the judge first.  Often, sending the information to court with a covering letter asking permission to use it may be enough.  I know – the judge will already have seen it at the time you ask – but that’s just the way it works.  If the judge says no, just take it on the chin and think of another way to get your point across.  In child proceedings the judge that starts the case usually tries to keep it in his/her caseload – this helps with continuity.  So try to build a rapport with the judge as best you can and make a note of how s/he thinks as this will help you to plan the case going forward.

4) Silence is Golden

It can be very frustrating when representing yourself in court.  Please bear in mind, however, that you are not allowed to discuss children cases with all and sundry.  In fact, there can be serious legal consequences if you discuss the case with someone who is not involved in the case.  Remember point (2) above.  Imagine your ex coming to court waving a snap-shot of your facebook page where you’re giving a no-holes barred update of the goings on in your case.  Not nice.  So get professional help if you need to – and there are many free organisations out there – but try to keep a lid on your emotions.  It will serve you better in the long-run.

Good Luck!

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Want to use this article in your networks? You can, but you MUST include the following:

Rachel Toussaint is a Consultant Solicitor at Rogols Consultancy, Birmingham UK.  She is a human rights advocate especially as it relates to immigration, family law & civic duty.  She is also a consultant for small businesses and entrepreneurs. In her blog she shares legal tips to empower clients to quickly and effectively resolve their legal disputes. http://www.racheltoussaint.wordpress.com

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 Images courtesy of Free Digital Photos

How To Avoid Court in Children Disputes

As we all know court proceedings can be very costly and in some cases there is no way of avoiding this.

However, before going to court it may just be worth your while seeing whether you can resolve the dispute without going to court.  Try out my three suggestions below:

 1.      Write a letter to the other parent asking them to agree that you should be having contact with your child.  The letter should be simple but specific.  So avoid making any snide remarks and make sure that you set out the specific times you want to see your child.  It may seem a little robotic but by doing it this way you are bringing some certainty into the equation. Give them a reasonable time to respond so you could end the letter by saying that you must hear from them within 14 days.

If the time limit has passed then send them a second letter.  This time consider sending the letter via recorded delivery so that you can have proof the letter has been signed for and collected – or not as the case may be.

If you still get no reply you can approach a Solicitor to write a letter to the other parent.  This shouldn’t be too costly but it will make the correspondence more formal.  Usually a “Solicitors letter” will cause the other parent to respond.  If the other parent does not respond then you will know that you are likely to have a long and complicated dispute.

The Solicitors letter would usually end with a request for a response within a specific time, alternatively, court action will be started.

 2.        Ask a mutual friend to help you both in discussing any obstacles which are preventing contact being agreed.  Often, certain left over bitterness from the relationship can affect the future relationship of the parents.  This can mean that the children suffer as a result by being forced to live between feuding adults and being alienated from the parent they no longer live with.

Mutual friends are often best place, because they know both of you and the children, to step in and help iron out any disputes.

With this method, however, don’t feel forced to use a friend who shows any sign of bias as one or the other of you is likely to feel uncomfortable with the decision reached and it is therefore less likely to last.

A mutual friend can also be an upstanding member of the community who is known to the family.  For example, a religious leader, community leader, a friend with a relevant professional qualification.

Don’t let these discussions drag on indefinitely.  If you aren’t able to agree something concrete by the second meeting then this method is probably not going to work.

 3.    Use a professional mediator or relationship counselor  If parents are really serious about moving things forward in an acceptable way and doing what is best for their child they will know that avoiding delay and court proceedings is crucial.

So if things can’t be resolved informally then the next best way is to use an external person who is specifically trained to help families dealing with the consequences of a relationship breakdown.

If you have gone to see a Solicitor before using a mediator or relationship counselor you can still ask the Solicitor to refer you to mediation.  The mediator can then take over the case to help you both come to an understanding on future contact.  The Solicitor can then help to formalize this understanding so as to avoid problems in the future. Relationship counselling

So there you have it, try out these suggestions above before rushing off to court – it will be less expensive and help you get on better as parents in the future. And for the resident parent you might just get a regular willing babysitter – for free!

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Want to use this article in your networks? You can, but you MUST include the following:

Rachel Toussaint is a Consultant Solicitor at Rogols Consultancy, Birmingham UK.  She is a human rights advocate especially as it relates to immigration, family law & civic duty.  She is also a consultant for small businesses and entrepreneurs. In her blog she shares legal tips to empower clients to quickly and effectively resolve their legal disputes. http://www.racheltoussaint.wordpress.com

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 Images courtesy of Free Digital Photos