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Legal loophole - can anything be done?(9 Posts)
I posted a few weeks ago about my DHs ex applying to court to discharge a contact order, but she used a C2 court form, rather then a C100, to initiate the proceedings. The original case that resulted in the contact order had been closed several years ago. DH was advised by the court that it wouldn't make a difference which form it was in - and that was the advice here on MN, too.
At the first court hearing, CAFCASS told the court that they hadn't prepared a Schedule 2 letter, because the application had been received on a C2 not a C100 so had not been sent for initial checks. The Court directed CAFCASS to produce a schedule 2 letter and scheduled a hearing for over a month later.
DHs ex has not attended a MIAM, or submitted completed an FM1 to the court, because that is not required with a C2. She has repeatedly refused mediation.
In the meantime, DH hasn't had any contact with his DS for over 4 months. By the time the court eventually get round to considering the issue, that "status quo" will be firmly in place, despite DH having had regular contact (1 week in 3) for the preceding 3 years.
It's incredibly frustrating. Is this a known tactic that RP use in court to delay proceedings, and avoid mediation, or has DH just been incredibly unlucky?
I imagine that the solicitors on this forum would probably disagree with what I am going to say here but...
...if there is no contact you should consider an ex parte hearing. Even if you have made a Section 8 application and you're waiting for a date/the hearing to roll round.
As you say, the longer the status quo the harder it will be to challenge. You probably already appreciate your DH will be told something like `We need to reintroduce the DC slowly' or something like that.
It may be worth him drafting a position statement and going to his local court asking for an ex parte hearing. Possible outcomes include them a) refusing to see him and advising him to wait for the listed hearing b) hearing from the judge that the hearing has been brought forward c) him seeing the judge there and then.
I've advised people a few times in this sort of situation and doing the above has a fair chance of bringing things forward - a good position statement can make a huge difference.
You also correctly identify the delaying tactics. The ex knows the value of the status quo and may string things out for as long as possible as she has what she wants already too.
Let me know if you want a few pointers.
lostdad I bloody well hope the court will order DHs DS is reintroduced to contact slowly - his presence in my home, and contact with my DD, is going to take some adapting to after everything that has happened.
As for ex parts hearings - not a chance; the nature of the area/court means that the relevant staff are only available during very specific hours on very specific days. People have to make an appointment just to submit and pay for routine applications.
lostdad, I know you have some relevant experience here, but I think there is not a cat's chance that the court will make a contact order ex parte.
The whole point of the Schedule 2 letter is to do a preliminary risk assessment, and there is no way that an order will be made without safeguarding checks, on an ex parte basis, where contact is opposed. That's the very reason why the court has put it off instead of starting to make orders on the first hearing date.
To OP; I don't think you (or your DH, rather) need to fear the status quo problem here. Arguably, the status quo is the existing order. There is clearly an established relationship between your DH and his DC. Whether or not his ex has any good reason for trying to discharge the contact order, these things will count in his favour. I think he was unlucky that CAFCASS didn't act on/get sent the C2 form.
I don't think they'll make a court order ex parte either (although that has been known).
I'm suggesting an ex parte hearing to bring the matter forward to be dealt with ASAP as the status quo is a powerful argument.
You say `no way that an order will be made without safeguarding checks' but there is also clear case law that allows for interim contact orders to be made before matters have been investigated fully. It's something that I see time and again....dad puts a C100 in, mum attempts to prevent ANY contact by making allegations and judge orders contact in a contact centre until the matter has been investigated. It's a tired and worn path.
You also say `Arguably, the status quo is the existing order'. The problem here is that an order isn't worth the paper it is written on if it's not stuck to (and arguably not even then). Don't stick to an order and return the matter back to court and the first thing you'll be told is `You don't stick to orders - if you were that concerned about it, why didn't you do so?' This is even more the case when the order is by consent.
As I said up thread, an exparte hearing is just not an option - I understand that in busy courts, with full time staff, that can happen, but in more rural areas, there isn't even a suitable judge in the building most days!
lostdad has any work been done around whether there is a postcode-lottery at play when it comes to Family Court? I often wonder whether my DH would have experienced things differently if he had access to a more enlightened court.
The few cases I've known that have been heard in the nearest City (in County Court, rather than Magistrates) have had markedly different outcomes - including penalties on RP for non-compliance. That was so unprecedented that the RP sought sympathy through our local media!
There is undoubtedly variation although I don't know any studies off hand.
If you're in Wales you're much more likely to go to a Magistrates rather than a County Court than if you're in England (although that's moving towards more Magistrates).
Judges are people so have their own biases and this applies to courts too. People in my network talk and it's clear that some courts `never give out shared residence' (I've heard that phrase) and some judges are pro mum or dad.
It's a view amongst some of us that it is, as you say, a lottery. It's one of the reasons that when I assist people we prepare, prepare, prepare leaving nothing to chance and do our best to keep stuff out of courts because it is at the end of the day a real leap in the dark that is best avoided.
lostdad i agree - Ive seen comments here on MN stating that "courts are pro-Dad, now", yet in my experience, that very much depends on the court, rather than a blanket approach.
Forgive my ignorance, but what the rules regarding where an application can be filed? Could a Dad seeking contact file in an area known to be "dad friendly" or a mum concerned about contact file with a court (like the one local to me) that is known to be "more traditional" in it's approach?
You need to file an application at the nearest court to the resident parent. Would caveat that by applying to the nearest County Court rather than Magistrates Court.
In my experience magistrates tend to favour the status quo even more than District Judges and worst case scenario is you'll end up with a `Legal Advisor' who can only make an order by consent - meaning that if a RP refuses to negotiate whatsoever nothing will happen.
Some courts act as a `clearing house' and distribute applications to other smaller courts. If you're unclear the best thing to do is to phone the court office and say `The RP lives in X, I'm filing a C100 - do I send it to you' and act on that (although bearing in mind the Magistrates/County thing).
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