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leave to remove question

(34 Posts)
littlemsd3 Fri 19-Aug-11 22:12:38

I have been offered a great job in a country where I have family ties. My children's father are from the same country.

He is contesting my application, and I have been told it will cost me a significant amount of money to complete the process. Does anyone know if it is possible to represent yourself. I have a strong case re finances, accomodation, schools, contact proposals etc.

sneezecakesmum Fri 19-Aug-11 23:43:23

I think you would be foolish to represent yourself on such an important matter to you as this. Regardless of finances, schools etc, a father has the right to see his children and be involved in their lives and this would be difficult for him if they were in another country. You need to seek legal advice to judge just how 'strong' your case really is.

littlemsd3 Fri 19-Aug-11 23:56:47

Thanks for your response. I have sought legal advice and currently have a solicitor. We have had our initial hearing, and it was the solicitor who mentioned the strength of the case.

It is a life altering decision that I have put a lot of thought into (including future contact with their father), but I do not have 10's of thousands of pounds available and the children's father is representing himself. He also is somewhat erratic in terms of contact at the moment.

Collaborate Fri 19-Aug-11 23:58:22

On the basis of the limited information in your post your case seems fairly solid. You can always represent yourself, but you'll end up doing so ignorant of crucial caselaw that will help you present your case.

littlemsd3 Sat 20-Aug-11 00:50:55

The case law that I am aware of and have considered in writing of my statement (which I am doing currently) is Payne vs Payne and the more recent 'K' case - though my situation is in no way a shared parent situation.

My concern about this route would be my lack of knowledge about the process coming up, however if my only other option is to withdraw the case and stay, then it could be worth trying.

QueenofWhatever Sat 20-Aug-11 10:38:14

I'm in a similar situation as I am considering moving away from England to another European country where I would have a 'proper' job and friends. My ex was abusive and is still trying to control me whic is one of the reasons I want to leave.

My limited understanding is that my ex can take a prohibited steps order out to prevent me from movin g but that it is unlikely to be successful as it would impinge on my human rights. Is that correct? Also how likely is it that he could stop me moving?

My ex currently has DD two weekends a month which we agreed via solicitors but is not court ordered. There is also no police or legal 'evidence' of the domestic abuse, especially as it was non-physical. I would not want my ex to have no contact with DD and understand that I would have to bring her back here to see him, it's just a case of how often.

littlemsd3 Sat 20-Aug-11 11:52:02

Queen, you need to be aware that it is not just that your ex could take prohibitive steps to stop you, without explicit written consent to take your DC out of the jurisdiction, assuming your ex has parental responsibility, either agreed privately or via the leave to remove process, you are abducting them. The problem with abusive and controllling men is this scenario it is hard to negotiate any arrangement without legal support.

Hence my situation where I have to pay a fortune to complete the process, even though chances are I will run it fairly easily and am offering several contact options. Which makes me wonder how much of a risk is it to do it myself?

rubin Sat 20-Aug-11 12:35:57

Hi littlemsd3,

I've just gone through a similiar court process, to relocate with my children to N Ireland from England (Father remains in England).
I too had a very strong case - better family ties & support & even in England their Father had a long way to travel to see them.
My solicitor advised me that it was a very strong case in my favour & hence I could represent myself if I wanted to, but she did also advise that at the very least it would be advantageous to get her to help me prepare a statement that I could read out in court.
In the end I kept her, the solicitor, with me the whole way & also employed a barrister for the actual court date. My problem was that their father is an extremely verbally abusive & manipulative person & I never trusted him. I felt I needed a strong arm beside me. It cost me approx £6,500 in total - although I had been advised that it could have gone to approx £10K.

So, I think you should chat to your solicitor again & perhaps look at the 'statement only' assistance which should significantly reduce your overall costs.

It really depends how strong you feel against your ExP.

My happy ending is that the court went in my favour & we are now happily settled back home. Albeit, their father continues to threaten to reapply to court to change the order ....!

Best of luck with it all - it's an emotional & stressful journey.

sneezecakesmum Sat 20-Aug-11 14:01:21

If part of your case is also about the father's erratic contact then make sure you have all dates, failed contacts etc presented to the court. If the DCs father is just being nasty in contesting your application rather than a genuine wish to keep regualar contact with his DCs, then these records will support your case.

Would your solicitor be able to advise you on legal points, how to present evidence yourself, case law etc without going the whole hog and representing you in court if you are able to do that yourself? As in an advisory role. It would be the best of both worlds and 10K maximum cost sounds awful. Self representation is all well and good but I am sure there are some awful pitfalls, and in something so important to you and the DCs I would be extra careful.

PS Has a legal precedent been set (ie case law) supporting the HR article 8 in cases such as yours?

littlemsd3 Sat 20-Aug-11 15:25:46

Thanks all, I am in a very similar position to Queen, Ruin with the history of (emotionally) abusive and controlling behavior ...and I have a incident spreadsheet going back a couple of years to support.

I do think that thinking through what can be done independently, and what I will really need legal support for.

Sneezes, I am not sure if I fully understand your last question, but my understanding of precedent and leave to remove, in what the impact of refusal, would be on the applicants parent's health and well being is key( as well as family ties, contact arrangements)..and the far more recent K case puts more emphasise on contact but really.for.shared parenting set UPS.

littlemsd3 Sat 20-Aug-11 15:28:18

Sorry that post is almost illegible. I blame my phone.

sneezecakesmum Sat 20-Aug-11 22:38:19

I take it you have been ploughing through this
If your circumstances are similar to the case cited, it would seem to be strong and the mothers wishes upheld on appeal. I take it there has been no more recent cases overturning this ruling? If not your case is strong and if you can get help with the 'hardware' of the legal system (arranging court dates etc) I don't see why you can't present a case on similar lines, especially your supporting documents on the Exs abusive behaviour.

I only have second hand experience of someone self repping and the judge in that case was very nice to the plaintiff and snappy with the solicitor! so if you cant fully afford full representation and can't get legal aid I would go for it. I've heard there are court officials (?) I think who can talk you through the nuts and bolts, but not too sure who they are!

When I say HR act, no similar cases have gone all the way to the court in strasbourg I take it, but the payne v payne ruling was made by the supreme court so could only be overturned by strasbourg? Is that right? If so I hope you succeed in getting the help you need, I didn't realise your ex was not a nice kindly dad, I'm a bit naive I guess in thinking all dads love their kids and are nice people!

STIDW Sun 21-Aug-11 13:45:34

The law relating to leave to remove is outlined here;

http://www.familylawweek.co.uk/site.aspx?i=ed878

From the human rights perspective it's a bit of a non starter. Most people don't understand human rights legislation and 85% of applications to ECHR don't fulfil the necessary criteria to be admissible. The right of parent with the majority of care's freedom of movement has to balanced against the right of the parent who is being left behind to a family life and the right of the child to a relationship with both parents.

The problem for self litigants is that they are often "too close to the trees ..." and don't have the knowledge or experience to apply the law to their particular case.

littlemsd3 Sun 21-Aug-11 14:00:19

Rubin, sorry...autocorrect changed your name into 'Ruin' in my last post, our situations sound very similar...I hope I can get it sorted as you did.

Sneezes,STIDW think my final decision is to keep legal support, but a very light touch and to agree with them what I can do up front. The children's father is self representing so will not ne paying anything, so I am keen to just get it resolved cleanly.

STIDW Sun 21-Aug-11 14:04:07

BTW Payne v Payne still stands. The principles and guidelines can only be altered by the Government changing legislation or the Supreme Court overruling it's previous decision.

QueenofWhatever Sun 21-Aug-11 17:28:02

Littlemsd3, can I ask how long the whole process has taken so far? My ex is the sort who will just drag things out in a slightly passive aggressive way. And what is the ultimate outcome if they just won't give written permission? Can the courts force them to?

Just with the job I want to apply for (and would be fairly confident of getting), they would probably want me to start within three months or so and I can just see my ex taking as long as he can get away with it for. It would also be difficult because then DD (6) would know as he would tell her and I imagine she would feel quite conflicted.

My ex knows nothing about law and is not the sort to self-represent himself, so one thing that could work in my favour is that he would be unwilling to pay solicitors fees (he's very tight!).

Thanks for that link STIDW, from what it says based on my limited knowledge I think I could have a reasonable chance. The real issue is my ex who is unpredictable and manipulative, but very plausible. The solicitor I used when I left was recommended by Women's Aid but still sided with my ex, suggesting I have mental health issues (yes, I was stressed and frightened, but that was due to my ex!).

littlemsd3 Sun 21-Aug-11 21:52:00

Queen, pm me if you want further details but definately factor in more than 3 months. I think it will take me about 6, could be longer.

Get a solicitor to help you pull together your statement, key things to consider are how will contact e

littlemsd3 Sun 21-Aug-11 21:54:45

Queen, pm me if you want further details but definately factor in more than 3 months. I think it will take me about 6, could be longer.

Get a solicitor to help you pull together your statement, key things to consider are how will contact be maintained, your relationship to the new location and key what the impact will be on your physical, mental and emotional health if you are forced to stay.

littlemsd3 Sun 21-Aug-11 21:57:04

The other thing is 'leave to remove' is asking the courts not your ex, to give permission. If your ex gives written permission, you do not need to go through this process.

sneezecakesmum Sun 21-Aug-11 22:04:02

Good luck littlemsd3, I think it is the right decision to keep your solicitor on board. If Ex self reps then more fool him! If the Ex self reps and makes a major mess of it, it may work in your favour and keep your costs down.

Sometimes it is about the need to control and not about the love of the child which is pretty sad, as the emotional fallout helps no one.

littlemsd3 Sun 21-Aug-11 22:34:23

Thanks Sneezes, yes it is a shame about how things have all turned out.

babybarrister Mon 22-Aug-11 19:25:51

sorry but I disagree with the timing. IME you need to factor in a delay of at least 12 months as Cafcass will inevitably be involved and asked to report .....

there is nothing wrong with self repping but please remember courts are getting more and more difficult to persuade to allow people to leave unless VERY generous contact is offered IME [ie virtually the whole of all school holidays ....]

mumofsoontobelawstudent Mon 22-Aug-11 21:34:42

Agree with babybarrister in that you need to allow up to 12 months (if not more). Very unlikely in my opinion that it could be resolved in under 6 months unless ex concedes. In my local court you would normally expect to wait up to 12 weeks for CAFCASS report and then invariably they would say they had delays and would be 20 weeks..................

rubin Tue 23-Aug-11 18:47:11

My leave to remove case was resolved within 3 mths (Feb this year), but CAFCASS weren't involved so perhaps that helped.

mumofsoontobelawstudent Tue 23-Aug-11 19:30:58

That is very quick rubin, you were lucky. Where CAFCASS is involved it is often 50/50 whether the child involved is still a minor by the time they have finished their report wink

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