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Application to discharge a contact order

(18 Posts)
AliceinWonderhell Tue 22-Oct-13 10:31:47

On what grounds would this be done?

DH has received notification that his ex has applied to court to discharge the contact order that has been in place for over 3 years relating to their now 10 year old DS - because exW considers any contact to be too distressing for their DS.

In my opinion, there has been absolutely no sign of distress when he has been here, and neither he nor his Mum can say WHY he is upset, just that his Dad and our home scare him.

What can DH do?

lostdad Tue 22-Oct-13 11:09:05

The only way way an order can change is for her to take the matter back to court to vary it or submit a fresh application.

As always she will have to prove that on the balance of probabilities that would she is seeking in the best interests of the child. Chances are that if this goes to court a `wishes and feelings' report will be ordered especially as the child is of a suitable age.

I would strongly recommend you and your partner join Families Need Fathers to deal with this as there are a lot of people in the same situation as you who will be able to advise you how to handle this, having gone through it. They have support meetings around the country, an excellent forum with advise from McKenzie Friends, solicitors, CAFCASS people, etc and there is also a telephone helpline.

Don't bury your head in the sand. Assuming by `notification' you mean you have a hearing come up you need to act fast.

AliceinWonderhell Tue 22-Oct-13 11:45:25

Thanks LostDad - I've already sent him a link to FNF; that is definitely something we will be doing.

DP's exW has applied to the Court; she's told him she has done it (no paperwork yet) and she's told him that she is currently withholding contact despite the existing order - I'm not sure what she did about the FM1 as DH hasn't been invited to mediation; he's tried to mediate with her several times but she has always refused.

There was a CAFCASS Wishes and Feelings Report done for the origional order 3 1/2 years ago; at the time, DSD was 12 and DSS 6. DH was awarded more contact with DSS than his exW was offering, and the Court issued a recital for DSD which meant she could choose whether or not to see DH. She chose not to see him for over 2 years, but now she is older has chosen to see her Dad despite her Mums disapproval.

Do CAFCASS actually do initial checks before the first hearing? There has been recent social services involvement - earlier in the year DSS disclosed that he had seen his Mum hit/drag DSD during an argument, and that was investigated. When DSS initially told DH that he was scared of him and didn't want to see him, I called Social Services to get advice about my own DD being here. Will Social Services involvement make a difference to how the case is treated by the Court?

lostdad Tue 22-Oct-13 13:28:59

Take whatever she says about discharging a contact order until you get served papers. A lot of people say this sort of thing to try to create panic. Ignore what she says for the time being.

The bottom line is that she cannot unilaterally alter a court order. If she isn't happy with it, she can take the matter back to court - which of course is what she is suggesting. If she is withholding contact however she may want to take the matter to court but force his hand and get him to make an application for this end - and then attempt to hijack his application to argue for a reduction in contact (I have seen people attempting to do this).

CAFCASS will likely do a safe guarding report very early in the case - check if anyone involved is known to the police, SS, etc. Social Services involvement is generally not a good thing in my experience and you should avoid involving them if it is at all possible - but I appreciate in your case this is shutting the door after the horse has bolted.

Your other half should make sure all his paperwork is in order - orders, reports, etc. and make sure he keeps a diary of what goes on and recordings (courts will likely not listen to them but you can use transcripts.

If she withholds contact and she has not made an application I would advise that you make sure you have proof of a pattern of this (3 times is good) and then go straight to court for an emergency application.

Listen to the advise of others - I suspect that some of the solicitors on here would not agree with what I have typed here, but it is what works in my experience. Delay is your enemy and `following procedure' often makes a hard situation worse.

Let me know if you need any help.

AliceinWonderhell Wed 23-Oct-13 15:10:50

She's clearly really upset about something; when DH let her know he wouldn't agree to cancelling all future contact until the court hearing as she requested, she's emailed back saying she has no choice but to apply to the court to remove his PR.

I assume there would be a lot of assessment and intervention before the court would actually do that?

3xcookedchips Wed 23-Oct-13 15:20:06

I commented on another thread that a father who was only seeing his child 4 times a month was going to go to court for custody, he was smoking crack!.

This woman too must be smoking crack...either she has no legal advice or it's very poor.

Unless there are very extreme extenuating circumstances, then she has two hopes.

cestlavielife Wed 23-Oct-13 15:21:34

at 10 a good psychologist shoudl be abel to gently tweaze out why he "was scared of him and didn't want to see him" - might take a few sessions.

dad or mum could take him to gp to ask for referal but might take time.
or dad could pay for private appt with a psychologist ?
if he is scared for whatever reason dad needs to know why so he can address whatever it is.

if dad shows he taking steps to try and change whatever it is might be scaring ds that might be good move.

if dad cant fathom what it is then he needs to offer to address this in some setting eg family therapy mediation etc (if in fact he is scared of mum or mum's reaction that will hopefully come out ...)

jsut be honest about why you contacted ss and the outcome .

AliceinWonderhell Wed 23-Oct-13 15:35:19

I agree it is essential to know why DSS is scared of his dad, not just for DSS sake but to reassure my DDs Dad that she is safe when shes with DH. DDs dad has been very understanding; I'm not sure I would have been if it was DDs stepmum that was being 'accused'!

I'm not sure it will ever happen, because DSS Mum doesn't think its important - she's said to DH that she doesn't care why, if he's scared/dislikes Dad then her job is to protect him from that by not forcing DSS to see him.

She's not pro-therapy or mediation either - she repeatedly refused mediation during their divorce and refused play therapy for DSS that was recommended by the school a few months ago after he saw his mum hit/drag his sister. The school wouldn't accept DHs sole consent.

AliceinWonderhell Thu 24-Oct-13 09:42:37

Well, according to her latest email, she has now applied to court for DHs PR to be removed because he is displaying an insensitive disregard for DSS "wishes and feelings".

Is there anything DH should do before he gets the court paperwork? His ex has now said that DSS won't be at After School Club for DH to pick up today, as per the current order; should DH go anyway?

Collaborate Thu 24-Oct-13 10:42:44

You can rest assured that the court doesn't have the power to remove his PR if he acquired it by being married to the mother a the time of birth. The court can remove PR from a father who acquired it by going on the birth certificate or by PR agreement or court order, but only in extreme circumstances. Look at s4 of the Children Act 1989.

prh47bridge Thu 24-Oct-13 10:43:41

If they were married she cannot get a court order to remove his PR. Even if they were not married she is unlikely to succeed. The courts are generally reluctant to remove the father's PR.

Make sure you keep a diary of all her breaches of the existing order. If it were me I would turn up today anyway - you don't want her claiming that she complied with the order but your DH didn't turn up. If the paperwork doesn't arrive soon your DH should apply for the existing order to be enforced.

As others have said, you and your DH need to find out why DSS is scared of his dad. Is it something your DH has said or done? Or is he trying to please his mum?

AliceinWonderhell Thu 24-Oct-13 11:28:55

bridge I think one thing is that DSS is scared of his Mums reaction when his Dad disagrees with DSS Mum - this is one of the things she has said to DH; that DSS is scared of the email/phone calls from DH to DSS mum, because it upsets her so much and that upsets DSS.
DH and his ex rarely agree - they have very different parenting styles and unfortunately, his ex has tried to influence what happens in our home several times in the past.

I cannot think of anything that DSS would be scared of - but I'm not a 10 year old boy and I'm certainly not objective! I do trust DH with my own DD though; I only hope her Dad continues to support that too.

AliceinWonderhell Fri 25-Oct-13 07:10:18

As expected, DSS was not there for DH to collect yesterday - a slightly panic-stricken staff member at the after school club explained that "his mum cancelled his booking earlier today, didnt she tell you?"

DH has recorded it, and will seek advice about whether to enforce the order via the court if, as he expects, further contact is prevented. He wasn't even able to speak to DSS on the phone last night sad

When the original order was put in place for DSS, the court issued a recital for DSD subject to her specific wishes. Is there an age at which this is the accepted procedure? DSD was 12; DH is worried that if he applies to enforce the existing order for DSS, the court may decide to replace it with a recital anyway.

lostdad Fri 25-Oct-13 08:48:21

Make sure you have an established pattern of recorded before you go for enforcement - you don't want to make an application, get there only for mum to say `Contact didn't take place because the child was ill' - before her solicitor paints you are a bully who just wants to drag her to court.

Your next stage is to contact her, say you are disappointed that the child didn't get contact and to propose a time for the contact to be made up. It is important to do this.

If you don't do this it will become a status quo and you risk the other party saying that by not trying to change it you have accepted it and may seek to get the order varied to reflect this.

I suggest that if she does this another couple of times you go to court for an emergency hearing. Complete a letter and short position statement saying why you are there and turn up to court first thing in the morning. Expect the staff to attempt to turn you away and any solicitor you may have to tell you not to do this and to make an application to the court instead. I advise you do this because if you simply write to the court you may find that you are scheduled a hearing in 2 or 3 months down the line by which point the status quo has been set and your fight will be all the harder.

Assuming there is an ongoing case or it ended around a year ago you can go for enforcement without submitting a fresh application. Don't be that surprised however if it turns out that when you go to court they will tell you that you do need to do this. Every court has it's own version of doing things (despite Practice Directions, etc.) and by bringing the matter to a head and going for an emergency application you will move things forward that much faster.

lostdad Fri 25-Oct-13 08:51:57

And yes if you're told by mum `don't bother turning up to collect the child' at a certain time in defiance of a court order do so anyway - you don't want to be told later `Dad didn't bother to collect the child' when you don't go.

If handover, etc. is at school, fine. If it is scheduled to be at mum's house, etc. and she is there or not answering don't cause a scene - just record it and go away quietly. It's always worth phoning the local police station in advance in cases like this too because you don't want to be standing outside a door only to have a police car arriving suddenly after you find yourself reported for harassment/domestic violence after knocking on the door. wink

AliceinWonderhell Fri 25-Oct-13 09:28:29

Thanks lostdad the order specifically stated handovers through school to avoid confrontation between parents - it's been in place for several years, although this isn't completely out of the blue as DSS mum has never made a secret of the fact that she doesn't want the DCs to see their Dad at all - she even tried to recruit the school to assist her in that at one point.

At the moment, her response to any request or suggestion DH makes to her about contact is for her to tell DH that his continued insistence to see DSS despite DSS wishes is providing her with evidence for court that DH is putting his own wants before his DS best interests. Will a court see it like that? If DH drops her an email later in the week suggesting DSS spends time with him this coming weekend, will the court accept DSS mums position that by asking, DH is causing his son further distress?
As far as we are aware, DSS is shown all the emails between his parents to read and any calls DH makes or receives are on speaker phone with DSS in the background. He's worried about what he writes in case he makes DSS fear worse - mum said that he's "even more scared" of DH now than he was before - but there's been no contact at all between them!

lostdad Fri 25-Oct-13 09:45:36

If you need a chat, PM me - it's a complicated one and you have a lot of questions!

But in short you the court can order anything it believes is in the best interests of the child, simple as that. You only(!) need to demonstrate that what you are proposing is this.

From what you've said though it sounds DSS is being inappropriately involved in his parents' dispute and that most definitely isn't right.

Give me a shout if you need some help.

prh47bridge Fri 25-Oct-13 13:42:58

No the court would not accept that asking his ex for contact is causing his son distress. His son would not know that he has asked for contact unless she tells him, at which point it is clear that any distress is caused by her actions. If anything putting in such evidence might weaken her case as it would be clear that she is the cause of her son's distress.

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