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Should I apply for a residence order? (long - sorry)

(8 Posts)
Seapixie Tue 01-Jan-13 22:54:09

Happy New Year to you all. Am not a regular poster but have been following the threads in legal regarding contact etc with interest and would appreciate any advice.

Background: my exP left in May. We have 2 DS now aged 5.1 and 20 months. When he left, exP had regular(ish) contact with the boys at our home. This lasted less than a month and he began not showing, not answering phone calls/texts from me to arrange access. In June he decided that he would not see the boys again as he needed to 'sort his head out'. He then used my bank details fraudently and received a polive caution for theft. He was then issued with a harrassment warning following abusive calls/texts to me. He was informed by the police that he could contact me by email, text or letter to arrange contact with the boys. He did not get in touch until end of October.

At this time he got in touch and said he would like to see the boys again. I asked him if he was committed to them this time (it has been very upsetting for DS1 to be continually let down and then, in his eyes, abandoned; DS2 honestly has forgotten who he is). ExP assured me he really did want to be there for the boys and I arranged to take them to a local playground to meet him. It was bitterly cold and the boys weren't enjoying themselves so I agreed he could come back to our house to see them.

Over the next week he saw them a further 2 times at our home. During this week he also told me that he was going on holiday with his girlfriend on the 8th November and wouldn't be back until December. I admit to feeling uneasy as to why he had suddenly gotten in touch if he was intending to then go away again for such a long period of time and was also worried about having him in our home following the incidents in the summer (these were typical of our relationship but I only began reporting after he had left). However I wanted to give him the benefit of the doubt that he would not let the boys down again.

After the second time of seeing the boys, he returned later that evening on my invitiation to make a parenting agreement as I was really wanted him to commit to the boys and thought this may help. He was happy to do this and wanted to see the boys twice a week at our home to begin to rebuild their relationship. I agreed to this. ExP was supposed to bring his signed copy back (I typed it as we agreed it and emailed it to him whilst he was still here). He did not bring it back on his final visit before going on holiday and did not call the boys as he promised them while away.

On return from his holiday he did not show for the 1st 3 contacts. He then got in touch claiming he had tried to phone whilst away. When I challenged this (no missed calls on mobile/landline) he started excuses such as 'no money/forgot phone charger etc). He has not been in touch or seen the boys since. He did show at one of DS1 nativity performances with Gf and bag of presents in tow. However, DS1 was only taking part in 2 out of 3 performances as that was all I had been able to secure childcare for DS2 for, and so we weren't there. ExP gave the bag of presents to my childminder who was helping at the nativity. In it were several presents for DS1 and nothing for DS2.

And there it stands (thank you if you're still reading!). An ExP who can't commit to his boys, who uses DS1 (it's not just the presents - it's always been like this) but has absolutely no regard for how the boys feel to be continually 'dropped'. I have agreed to all the contact he wants but he still doesn't show, but is more than willing to take the chance of a public 'show'. Our lovely sons deserve better. I know ExP would never sign anything that would be helpful to me e.g. in order to be able to take the boys on holiday and I also fear that he will ramp up his efforts in disruption and control. I think I would feel more secure with a residence order but am not sure if it is something the courts would even consider.

Am so sorry this is so long. Thank you for any advice.

floatyjosmum Tue 01-Jan-13 23:59:38

Tbh I don't see a need for an order as it doesn't sound as though he would remove them which is the main aim for a ro - main carer.

prh47bridge Wed 02-Jan-13 00:14:35

The courts work on a no order basis, which means they won't make an order unless one is needed. There is no dispute about residence so it is unlikely you would be able to get an order.

Seapixie Wed 02-Jan-13 00:36:46

I have been reading about the no order basis and realise, as the boys live with me, an order would not change the status quo. However I was wondering if courts made exceptions?

The police have been extremely supportive as have WA. They advised me to explore this as, at the moment, if he did decide to take the boys I would have no immediate legal recourse. His behaviour towards them and me has been so erratic that I would just feel I was able to sleep a bit easier knowing that he couldn't use this as a way to control.

cestlavielife Wed 02-Jan-13 00:47:42

First don't have contact in your home. He has form for being abusive. There are soft play centres libraries cafes you can meet him in ie public places,

I think you need to wait a while longer keep good records of contact offered ie by email and his responses. You don't have evidence of him wanting to take them and not return them ?

I did get residence order In my favour but there were a lot more issues ex.s severe mh instability and aggressive behaviour etc. and it wasn't immediate but after two years of hearings and interim contact orders going thru contact centre evidence of him not turning up etc etc

In the absence of a contact order you can just ensure you or someone else supervises contact ina public place until you know for sure after some months what his plan is....?

If for example you plan to take them on holiday abroad then make sure you inform him well in advance by email and if it is then an issue then go to court then as a specific order (check correct terminology) To get court permission to go..

Then you would have good evidence for needing a residence order .... ?

STIDW Wed 02-Jan-13 04:52:50

Residence Orders might act as a deterrent when there are issues of manipulation and control but they won't necessarily give you the legal recourse that you think they will.

The police only have powers to intervene when there is evidence that children are at immediate risk of harm or there is a Recovery Order. Otherwise regardless of whether or not there is a Residence order the police may call round to check the children are alright and try to persuade a parent to return the children. If the issue can't then be resolved a parent with the majority of care would need to apply as an emergency for a Recovery Order and Interim Residence if there is no Residence Order in effect. That would be on the basis that the children's sense of security and established bonds had be disrupted and it is in their interests to revert back to the status quo. IT rarely gets that far, but the court tipstaff is responsible for overseeing a Recovery Order and may call on police to assist.

As far as holidays are concerned if your ex won't consent you can apply for permission from the courts or conditions can be attached to any future contact orders.

What I'm saying is there are other ways of dealing with the issues and you shouldn't be unduly concerned about the children not being returned or permission for holidays because there is no Residence Order. If there is evidence of manipulative and controlling behaviour or a flight risk the best person to discuss the particular circumstances and whether a Residence Order would deter your ex, costs and the probability of a Residence Order being granted would be a solicitor. Sometimes though it is better to let sleeping dogs lie, particularly if you only have to deal with your ex intermittently.

Seapixie Wed 02-Jan-13 18:35:57

Thank you all for taking the time to reply. Sorry it has taken me so long to come back on - the boys aren't much up for mummy being on the computer!

I definitely didn't realise that a residence order does not mean that the police cannot bring the children home if they are not returned. Quite simply, any chance of ExP taking the children or any kind of court order is a daunting prospect: aside from the obvious stress this would cause everyone, we live in an extremely geogrpahically isolated area and getting any kind of assistance aside from the local police involves a major expedition. It also worries me that if ExP were to take the children, finding where they had gone could prove very difficult.

The rational part of me wants to believe that he is unlikely to do this; his lack of regular or sustained contact (and his 'parenting' while we were together) indicates that caring for the boys is the last thing on his mind. However, part of me cannot forget the manipulative and controlling behaviour he has used towards us and I fear that he will further turn his anger towards us - he already blames me for his own lack of involvement with the boys, despite me repeatedly offering contact.

I agree there is a lot of merit to letting sleeping dogs lie. Although I spent several months actively pushing him to see the boys and agreed to contact when he finally got in touch, a part of me is relieved that at the moment he is not here. His track record of caring for the boys is pretty poor at best. The last time he was on his own with them at our home, I came back to find him asleep in my bed with DS2 and DS1 (then age 4) sitting out on the back steps on his own waiting for me to come back. This is partly why I suggested me supervising contact for the time being in the parenting agreement, with a review date in place. He agreed to this at the timebut I guess the whole agreement is out of the window now!

Many thanks for your time. I will continue to think this through and continue searching for a solicitor so as to be ready should the need arise as advised. Any further opinions welcome!

balia Thu 03-Jan-13 16:24:05

At the moment he is not seeing the boys and is not in touch, is that right? But it is likely that at some point he will be back in touch wanting to see them, so it might be an idea to be prepared for that. As others have said, a legal process probably isn't right for you now, but you can have a plan ready for when he does get in touch. Firstly, I'd not be accepting phone contact - email text or letter are more than enough means of communication and then he can't abuse you over the phone. You also have a record of communication for use later if it comes to it.

Secondly, if he gets in touch, I'd send a polite but firm letter stating the situation, eg that the DC's have not seen him for x amount of time, that he has not been able to keep to the previous agreement so your latest proposal is for contact to start and build up in a supervised environment; he can let you know when he has organised a contact centre.

Keep records of all interactions/contact with the boys, and dates, including details like finding him asleep when he was supposed to be caring for them.

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