Is this a breach of a contact order?

[AliceinWonderhell]

My DH exW has applied to discharge the contact order relating to their DS (10) - she also says she has applied to have DH PR removed.

Since then DH has not seen his DS - and is unlikely to see him any time soon despite another period of court ordered contact coming up.

DH ex has said in her latest email that 'she would like to make it clear' that she is not withholding contact, because she is quite happy for DH DS to see him 'if he wants to' but at the moment, he doesn't.

Is this legally a breach of a contact order? Or are all orders subject to a child's wishes - even if it isn't written into the order itself?

I think that if the order says she has to make him available for contact then it's not a breach but if it says she has to present him for contact it is a breach. Either way, I'd be interested to know if this is true. Have you contacted Cafcass and asked for a wishes and feelings report? Perhaps suggest it at the next hearing.

Re the wording issue above, this is something that was discussed at length on a forum I used to frequent but I cannot for the life of me remember if it was proven correct or dismissed. Try to get a wishes and feelings report done.

Thanks Rehead - I think I've found the relevant case: Re L-W (Children) [2010] EWCA Civ 1253

She's applied to have PR reoved, doesn't mean she will get it.

With regards contact you're DH can turn up for contact see what happens, or is it definitely not going ahead?

Oh yes, DH will turn up to collect DSS after school as per the order but his ex has already said (by email) she'll pull him out of school that day to ensure he's not subjected to the distress of seeing DH.

DH's ex is using his refusal to accept no contact as evidence that he is disregarding DSS well being.

he needs to turn up to school to collect the child as per the court order. If she removes him from school, she is not making him available for contact. As the child is only ten a court would not be happy that the mother is not enforcing the contact. Even if the child does a wishes and feelings report due to their age a court would not take much notice of the childs wishes even if they said that they wanted no contact. They would see this as the mother manipulating the child. She is extreemly unlikely to have PR removed, this is very rare. You should apply for a residence order asking the court to change the childs residence, from what you have posted.
I would suggest also that you contact LOSTDAD he may be able to help you.

kitty The DC in the case I referred to above was younger - and the appeal court ruled that although a RP may be under a parental or moral obligation to ensure that contact takes place, the parent was not under any legal obligation should they fail to fulfil these parental/moral obligations, neither are they legally obliged to "ensure" that contact takes place, only to "permit" the DC to have contact and to make the DC available to do so.

I imagine that if my DH's DS isn't at school on the first Contact day this week, his Mum will report him in as sick. DH will keep going back though. I'm not sure how many times DS Mum can report him sick without coming to the attention of the EWO's - he's already missed school because of his distress about the ongoing contact issues and conflict between his parents.