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Urgent legal advice required please - Interim residence order

(28 Posts)
OyOfMidWorld Wed 08-Jun-11 21:23:21

I wonder if any of you can help me. I am posting on behalf of a friend but none of us have any legal knowledge. I will also post this in legal but thought I may get more of a response more quickly in here.

A friend and his partner have split up. They have 2 sons and she has a daughter from a previous relationship. Yesterday my friend returned from work to find her clearing the house and taking all the children to an unknown destination. My friend did not want to allow her to take the boys but he was prevented from taking them by members of her family. There has been extensive social services involvement over the last few weeks for a few reasons, mainly the mother feeling unable to cope with the children.

Today he went to see a solicitor and within two hours they were in court and he was awarded an interim residence order requiring the two boys to live with him at his parents' house for the next week, and allowing access to the children for the mother. The mother was required to deliver the children to my friend's parents' house within 90 minutes and received instructions to do so by couriers. She then phoned my friend and told him to go and get the children. He replied that he was not allowed to go and get them and that she had to bring them to him. She then phoned the Police complaining that the documents she had received were faked and that she would not be taking the children anywhere.

After 90 minutes had elapsed my friend contacted the Police to state that the order had not been fulfilled. The same Policeman who had attended the mother's house came to my friend's house and stated that the documents weren't genuine. My friend then showed the Policeman his documents and he agreed that they were stamped by the courts and were genuine. The Policeman negotiated with my friend and ended up getting him to agree with leaving the children where they are tonight and sorting it out in the morning. My friend then signed to say that he agreed with this. As far as Social Services are concerned the children are with my friend and not their mother.

So, in essence, the Police and Social Services have failed to carry out the court order. Can they do this? What would the next step be? None of us have any legal knowledge and have never been in this position before so I really have no clue what the next step would be. Any help would be gratefully received.

Birdsgottafly Wed 08-Jun-11 21:31:31

They have not failed to carry it out, he agreed to the change and signed for it. He could have insisted that he wanted them. I take it that SS wasn't present, so they may have no knowledge that the order isn't in force. Had he of felt that the children were in any danger he could have stated that and they would have removed the children. If they are not in any danger then i have to wonder at the speed of the court order tbh.

The next step is to approach the mother in the morning and if she will not return them then he phones the police. On what grounds were the children given to him?

Birdsgottafly Wed 08-Jun-11 21:34:48

If there is any threat of harm then he cannot excuse not needing to know that the children are alright tonight. Either they are 'at risk' or not, i do not understand the change. If they were 'at risk' i feel he could be putting them in danger (depending on circumstances), parents in the ex situation usually flee with them. I am a CP SW and am viewing this in the worst case senario.

izzywhizzyletsgetbusy Wed 08-Jun-11 21:36:32

Does your friend's solicitor have an out of hours service? If so, call for further advice.

What is Social Services' involvement in this matter? Was a local authority social worker present in Court, and did they contribute anything to the proceedings?

Birdsgottafly Wed 08-Jun-11 21:40:17

I don't understand if the children were considered 'at risk' then the CP process should have clicked in. She has every right tomorrow to call SS herself for an investigation and review the courts findings. The policeman has not handled this as he should have, but then i don't know what the grounds of removal are. Did your friend sign a statement of events?

OyOfMidWorld Wed 08-Jun-11 21:40:56

Thanks for your response. I'm not clear on the reasons for the children to be given to him but I was a bit surprised at the speed at which the court hearing happened too.

I'm not sure if the children are considered 'at risk' or not. The only advice I have given to my friend so far is for him to contact the emergency Social Services line to inform them that the children are not with him. Social Services could then take action if they are unhappy with the children staying with their mother overnight. The Police stated that she had threatened to flee with them so my friend is, understandably, quite concerned about this. I don't understand why the Police would fail to remove them after she said this confused

Birdsgottafly Wed 08-Jun-11 21:47:25

She has Parental Responsibility and it sounds as though the court proceedings were done privately and not by the L.A. So the police would and could not remove them without a CP SW. It is the SW under the LA (granted by the government) that has the power, not the police. Minimal upset to the DC's would be the aim, whilst balancing risk.

The police should have contacted SS, it is a CP issue. The children are with a parent that the court has found to be 'unfit'. The speed is very strange. If the children are 'at risk' then they should be under a section 17 or 49 of the Children Act 1989 and there should have been a L.A C.P SW present.

glitterkitten Wed 08-Jun-11 21:49:27

Well he hasn't done his application any long term good! As is said above- why the change? He has told the court that the level of risk is enough, on the balance of probability, sufficient to merit an emergency change in residence. A judge doesn't do that lightly and unless dad has very good reason to not have forced compliance of the order, he has succeeded in strengthening mums argument. Long term ss may well be asked to prepare a report to make recommendations to court, particularly if they have been involved previously

manticlimactic Wed 08-Jun-11 21:51:56

I don't understand why the police did that either. She's threatened to flee but they've left the children with her?

If I were your friend then I would not have signed anything and made sure the order was carried out as is. He even caught her in the act of preparing to flee.

Birdsgottafly Wed 08-Jun-11 22:01:31

Mantic - the police do not have the power of removal, SS do. The police needed to establish the facts before taking a womans children from her. They established that there had been a change around and the father was happy to leave the children in her care and sign to say so. If he had not been happy they would have contacted SS who would have investigated the situation.

Birdsgottafly Wed 08-Jun-11 22:02:41

To put another side would not anyone of us 'flee' if our children were under threat of removal?

Birdsgottafly Wed 08-Jun-11 22:04:24

OP is there any likelyhood that she could leave the UK?

OyOfMidWorld Wed 08-Jun-11 22:05:12

I thought they had shared parental responsibility. The boys are aged 4 months and 15 months and both parents registered the births together.

My friend, his solicitor and the judge were the only people in court but the solicitor got telephone statements from the Social Worker and Family Liaison Officer (both LA staff) who work with the family which she then reported in court. My friend said that the judge felt that the children would be better off with their father in the short term.

I'm not sure about the Statement of Events, he says he has signed a few things today.

I had the wrong end of the stick. She threatened to flee when speaking to my friend and he then told the Police. Obviously the Police didn't take this very seriously as the Police officer persisted in getting my friend to sign to leave the children where they are.

He has now contacted the emergency SS line and they said they could do nothing until the morning.

My friend is only 23 (the children's mother is 21) and he has never had any kind of dealings with the courts before so he is feeling rather overwhelmed. He is trying to do what is best for the children and, apparently they are at their maternal GM's so they are not alone with their mother. The Policeman advised that they were 'tucked up in bed' and this was his main basis for persuading my friend to leave them where they were.

OyOfMidWorld Wed 08-Jun-11 22:06:33

No chance of her leaving the UK. Neither of the children have passports and I'm not aware of her having any family or friends abroad. I doubt she would go alone.

MrsJamesMartin Wed 08-Jun-11 22:07:22

The police do have powers to remove children under a police protection order, ss would then have to take over after this to ensure they were in a safe place.

Birdsgottafly Wed 08-Jun-11 22:14:06

Then they have shared PR but what i mean is they will not remove DC's from the birth mother without good reason, especially given their ages.

He needs his own SW, he may not get the children tomorrow, she can contest the courts decision. If he is going for residency on the grounds of the children being 'at risk' with their mother then the whole CP procedure will start tomorrow. I cannot see her now coming to an arangement with him over access etc, so tbh, you need SS involved. By law they must look to place the DC's with him if there mother cannot care for them. Both the GM's will be investigated if they are both living with their respected DM's.

Birdsgottafly Wed 08-Jun-11 22:16:06

The SS apply for the EPO, the two click in together. The police would wait for SS to turn up, which would be within a very short space of time. Very rarely (only if a murder has been committed etc) will the police take them.

OyOfMidWorld Wed 08-Jun-11 22:18:38

Thanks for your advice BGF. It has been really useful and I will pass it on.

tomhardyismydh Wed 08-Jun-11 22:23:57

"Mantic - the police do not have the power of removal, SS do"

this is untrue only the police and the courts have power of removal not SS

MrsJamesMartin Wed 08-Jun-11 22:24:39

EPO generally takes longer. Police can remove immediatly for 72 hrs to await EPO, if needed. If the police could not ascertain the children would have been in a safe place then they could have removed them, whatever the circumstances.

tomhardyismydh Wed 08-Jun-11 22:31:24

"The SS apply for the EPO, the two click in together. The police would wait for SS to turn up, which would be within a very short space of time. Very rarely (only if a murder has been committed etc) will the police take them"

No the police would enforce a police protection order, can be implemented anytime, there and then if needed, they would take the children to a safe place, ie police station and an EPO would need to be applied for to the court by a SW. A social worker has less powers to remove than police officer. A SW would need to wait for a Police officer, where as a police officer can remove the children without a SW.

Your friend needs to either inform SS in the morning or his solicitor. this has been carried out under a civil law and not under public law.

Law0 Wed 08-Jun-11 22:34:55

Solicitor can apply for a further order that the police remove the children from the mother and deliver them to the father. The police would have to comply with that order. You're friend must insist that any order made is adhered to. Social services have clearly not applied for any orders as they thought your friend was gaining the appropriate order from the court. It also costs a lot of money for local authorities to issue any type of care/epo proceedings and it saves them a lot of time/cost if a parent can simply obtain a section 8 order - residence etc.

Must let his solicitor know asap to get before a judge again.

Birdsgottafly Wed 08-Jun-11 22:37:19

But even the other parent agreed that there was no danger and signed to say so, but that doesn't matter, as it 's what he is willing to do tomorrow. He needs to make up his mind tbh.

OyOfMidWorld Wed 08-Jun-11 22:43:41

The Police have been back to my friend's house and stated that they will remove the children first thing in the morning. I've advised him to speak to his Family Liaison worker and ask to be assigned his own SW (the family SW went on leave today but she will have a conflict of interest in working for the mother and the father). He will also speak to SS and explain fully what has happened tonight. He wasn't aware where the children were and I think he was happier about them staying with their GM and their mother rather than just their mother which is how the Police persuaded him to sign to leave them there.

tomhardyismydh Wed 08-Jun-11 22:46:43

that sounds reassuring, I would get your friend to call his SS duty team tonight also to inform them of the situation as he may need to get them involved tomorrow.

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