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Order by consent - how to get one?

(18 Posts)
FrogbyAnotherName Sat 22-Mar-14 14:01:42

My DH and his ex are both LIP in the application his ex made to vary/discharge the order regarding contact for DH DS (10).

The application was vague as to exactly what exW was applying for, and at the consolidation hearing, the CAFCASS officer told DH that his exW position was that "her head" knew that their DS should have contact but "Her heart" didn't want him to. DH used the first hearing to try to get his DS some physiological support as recommended by the school and GP, which his exW had refused, but the court didn't make an order in DHs favour (although they strongly suggested that his ex should agree), mainly based on the CAFCASS advice given.

Since then, the court has directed a wishes and feelings report and for both DH and his ex to attend SPIP. They have another Directions hearing coming up.

DH hasn't seen anything of his DS for 6 months now, and indirect contact is also being disrupted and he's decided that enough is enough - it's not fair on his DS to continually be dragged through the mill, and he knows his ex won't go along with anything the court orders unless she agrees with it anyway - the reason this application was made is because exW wanted DH to agree to her decision to withhold contact; when he didn't agree, she withheld contact anyway, and applied to court.

DH wants to agree to whatever his ex is proposing and for the court to issue an "order by consent" to that effect - but without solicitors on either sides, how can he propose that prior to the hearing?

FamilyMag Sat 22-Mar-14 14:15:59

He should contact the court ASAP and explain what he wants, but his ExW will have to do the same, particularly since it's her application. Tbh, I think he should be very cautious just agreeing to whatever she wants, it sounds like she doesn't want any contact at all. I appreciate that your DH is trying to end the disruption for his DS but this way he's going to end up with no contact - is that in DS' best interests?

Also, the court is under no obligation to accept an order by consent. The application has been made and they will want to know the background before they agree the order. If I was in their shoes, I'd be querying how this is going to benefit DS. Has the wishes and feelings report been done? Have both DH and ExW done the SPIP? Given the age of DS, they are going to place a lot of weight on the W&F.

If the next hearing is fairly soon, it might be a good idea to attend that and see the duty CAFCASS officer if your court has one: they can agree the terms and liaise with the court on the parties' behalf. It's a bit ad hoc, but since the Legal Aid changes courts have come to rely on CAFCASS officers a bit more for this sort of thing in the absence of solicitors.

FrogbyAnotherName Sat 22-Mar-14 14:30:11

Thanks familymag - it does seem that. CAFCASS are keen to 'know the background' rather than just leave it to DH/ex; the schedule 2 letter included details of the SocServ involvement with their DS, and DH had to sign to agree that they would talk to the school as well.

DH doesn't think it's best for his DS long term not to have contact, but right now (since contact was withheld) , his DS is settled, happy and doing ok at school - which is a distinct improvement from when he was regularly having contact. All the while his DS knows his Mum disagrees with him seeing his dad, he's always going to be unsettled if he has contact - DH has reluctantly come to the conclusion that no contact is better for his DS than the emotional upset that accompanies contact.

FamilyMag Sat 22-Mar-14 15:19:38

Oh dear, that's a sad situation for them both. I would strongly suggest he wait for the outcome of the wishes and feelings report: CAFCASS should be able to find out what it is that your DS wants, which is important here. I wonder whether DS was unsettled during contact because of the behaviour of his mother rather than the effect of contact.

CAFCASS will certainly have wanted as much background info as possible as this was shaping up to be a contested hearing. And they probably still will even if your DH says he's going to agree with ExW. While courts do like parents to agree between them as much as possible, in this case it's going to look like the parents' agreement is not in the best interests of the child.

(Honestly, parents like this (the ExW in this case) do make me cross. Can't put their child's welfare first. Grrr!)

Of course, it won't be too long before DS is old enough to take the decision into his own hands. I'm sure your DH will make it clear that the door is wide open for him when he's ready.

If you can stand to post about it, I'd be interested to know what the court decide.

babybarrister Sun 23-Mar-14 21:37:14

Message withdrawn at poster's request.

FrogbyAnotherName Sun 23-Mar-14 22:33:41

Thanks both - DH has decided to wait, it's only another couple of weeks.

What he says he won't do is seek enforcement of whatever order the court put in place for contact (assuming they do). It's guaranteed that his exW will breach it at the first opportunity (she's even told him she will because she doesn't agree that she has to comply), but more and more court action isn't best for his DS - particularly as his DS is party to all the details because his mum tells him; phone calls, hearings, letters, statements, everything. last week we heard that she had been pointing out to him the bits in the SPIP book that she 'thought were complete rubbish'.

RedHelenB Mon 24-Mar-14 19:41:33

Your dh is very wrong - he needs to hold firm for contact. If exw doesn't go along with it, ultimately he could end up living with his Dad. He obviously went the court route initially or there wouldn't be a contact order in the first place to vary & to stop mid point sends the signal to his son that he couldn't care less about him.

ElBumpo Mon 24-Mar-14 19:57:06

I have to agree with Helen. I've followed this thread and sort of sat on my hands. Obviously your DH knows his situation best but deciding to cease contact doesn't necessarily mean things will be good for his DS long term. It seems likely that it would result in feelings of abandonment, if not immediately then further down the line.

I can really see what your DH is thinking. Conflict is no good for anyone and I know Divorce Poison does cover deciding to stop but I would be extremely reluctant.

Is the court aware that she discusses the SPIP/other court business with DS? Is he LIP without a McKenzie Friend?

FrogbyAnotherName Mon 24-Mar-14 20:29:32

Your dh is very wrong - he needs to hold firm for contact.

His. DS is 10, so even if DH puts everyone through 2/3 years of enforcement, it will end with his DS opting out of contact once the court say he's old enough to decide, just like his DD did at the same age. And in those two years, his DS will have to listen to the relentless poison about his Dad from his Mum.

DHs DD re initiated contact 2 years later - and is ping-ponging back and forth at the moment - her mums threat to withdraw her from College is strong enough to keep her NC at the moment (we'd fund her through college if Mum refused, but she's not strong enough to make that decision yet - says she can't do that to her mum).

Of course CAFCASS know that Mum is telling DS everything; her excuses oh, he looked over my shoulder/snooped/overheard me are pretty transparent. But, no court is going to order a change of residency against a 10 year old wishes. He could walk out and be back at his mums in a few minutes - and as he has to pass her house on the way here from school, it's likely that any court order placing him with DH will be breached within a day.

I struggle to see how DHs DCs will ever think he's given up on them - they know it was their Mum who applied to stop contact and remove their dads PR - she's told them!
The decision not to enforce is not just emotional - we'd have to default on a utility payment to cover court fees - but DH would find the money if he had any faith that it would make a difference.

ElBumpo Mon 24-Mar-14 20:48:09

It's just not that straight forward really. Even if the mother is the one applying for a no contact order, a child is well within his/her rights to question why the father didn't fight against it and continue to fight until there was literally nothing else left to do but stop. I see clients in therapy for far less things.

In fact I experienced something sort of similar myself (though not a contact situation) - me and my stepdad hated eachother, there were huge rows every night and I left home at 16. My mum didn't try and stop me. Even though my adult brain can rationalise that me staying at home would have been utter hell, I still resent that she didn't beg me to stay. Even though she didn't abandon me and I got to do what I swore I wanted, my unconscious emotional needs were completely missed and I fear the same is possible for your DSS.

I assume a W&F has been done? Has that said that DS doesn't want contact? Is he totally alienated? Or does his opinion about contact change sometimes?

titchy Mon 24-Mar-14 21:16:36

Perhaps the older dd is now only able to have some contact with him because she knew that he'd fought tooth and nail to see her.

Once the dd is 17 he'll have had 7 years of thinking his father didn't bother to fight over him the way he did with his big sister.

It sounds an awful situation but I think your DH needs to think about the very long term - 10, 20, 30 years into the future, not just the next few years.

titchy Mon 24-Mar-14 21:17:13

Sorry once the ds is 17...

FrogbyAnotherName Mon 24-Mar-14 21:58:38

Perhaps the older dd is now only able to have some contact with him because she knew that he'd fought tooth and nail to see her.

There was no fight. The court had issued a Recital based on DDs choice - she chose not to see him for 2 years. Yes, he kept in touch by letter, spoke to the school occasionally, and reported concerns about her to Soc Serv, but he had no grounds to 'fight', and appeared to go along with what his exW wanted, which was to give his DD space.

DHs DS hs stated that he only came when his DSis didn't because the court said he had to, and now he's older, his mum says he can choose when/how/if like DSis did.

Is he totally alienated? Or does his opinion about contact change sometimes? he never directly contradicts his Mum, but has some specific unreasonable demands in order to agree to see DH. DH exW opinion changes, which probably doesn't help - after her application and DSs allegations against DH and myself, she then expressed her expectation that DS would want to spend overnights here at Xmas. The three of them sat down to find out what DS wanted - he tied himself in knots trying to go along with what he thought they both wanted, and it ended up with exW losing her temper with DS and it not happening.

FrogbyAnotherName Mon 24-Mar-14 22:34:51

a child is well within his/her rights to question why the father didn't fight against it and continue to fight until there was literally nothing else left to do but stop.

Who judges when that is, though?

Other MNers have shared their stories - they lost their jobs, home, relationship & mental health along the way. Is that enough? Or too much? Who decides what DH should sacrifice in order to prove that he never gave up on his DCs?

ElBumpo Tue 25-Mar-14 07:13:31

It's not a rational thing though, like my personal example further up, and certainly at 10 he wouldn't be expected to understand any of that.

FrogbyAnotherName Tue 25-Mar-14 07:42:05

bumpo Are you saying that unless DH loses everything, then his DS will believe throughout his life that his dad 'gave up'?
DHs ex won't change, she's reliving her own childhood and doesn't know anything different - as far as she is concerned, she hasn't suffered any long term damage from not having a dad so the court/CAFCASS/SPIP is wrong when they say that her DS will. In one respect, her openness makes things easier - it would be harder if she was being deceptive about it.

I honestly don't think the court/CAFCASS know quite what to make of it - DH has had to repeatedly correct them as they refer to him as the applicant.

He really doesn't see any value in agreeing contact that his exW doesn't propose and actively support. It's only going to make things worse for his DS if the court orders contact that she objects to - his DS will be pressured to refuse, disrupted while he is here and punished if he shows any indication of enjoying it.

ElBumpo Tue 25-Mar-14 07:51:25

No, not definitely but it is a possibility. He is being massively let down by his mother, he needs his father to fight for him. At 10 years old he's not nearly old enough to understand the implications of going no contact with a parent.

It's an impossible situation, as we both know, and probably there is no right answer. Is there some way your DH can communicate to his DS that he desperately wants to be a part of his life and that the door is always open for him, but that he's choosing to stop the court action because he believes it to be too stressful for DS. I'd go as far as to say "if you want me to keep pushing for you, I will". Be absolutely explicit without bad mouthing exW.

It doesn't sound like no contact really is what DS wants though, even with that conflict. It sounds an awful situation, it really does.

Is there any hope of getting school pick ups so that exW is not involved in handovers? Or similar things like that? Ours are done through a contact centre at the moment but we're hoping for school collection. The minute she is involved with anything, it falls apart.

FrogbyAnotherName Tue 25-Mar-14 08:06:58

Is there any hope of getting school pick ups so that exW is not involved in handovers?

There's how this latest mess started!
Pick ups from school were specified in the first order, because exW would create a drama at handover (tears, wailing, clinging etc). As DS has got older, he's been keen to 'walk alone' like his friends do, so DH agreed to meet him halfway. As soon as DS mum found out, she began to intercept DS as he passed her house - "oh he looked upset" "oh, I just wanted to say goodbye", "oh, I wanted him to change so I could do his laundry".
Then of course, DHs DS 'didn't want to come this weekend' and when DH expressed his view that was a breach of the order he was being 'emotionally abusive' by refusing to listen to DS. Hence her court application and threats of removing PR.

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