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Problems with child custody case **Thread title edited at OP's request**

(16 Posts)
Pemba Fri 10-Aug-18 15:53:41

I am writing on behalf of my cousin. She has been separated from the father of her three-year-old since they were a baby. At the beginning there were no legal custody arrangements in place, she would allow him to take the child from time to time on an informal basis. A few months ago he took the child and didn't return them as agreed, and kept them for over a week. A court hearing happened and it was ruled that she was the residential parent (unsure of terminology) and the father could have access every other weekend. She was told that she should allow this, and that if he kept the child again the police could retrieve the child.

However he has done it again, and apparently the police can't help as there were no 'police conditions' attached to the court order, which my cousin thought there were. Now he is applying for custody himself, and my cousin is desperate. Her solicitor and her do not seem to be communicating properly. She is currently receiving legal aid.

Does anyone know how easy it is to change solicitors on legal aid, and also if she or extended family were to have to pay privately, how much the legal fees could potentially add up to?

lostdad Fri 10-Aug-18 16:09:53

OK. Firstly it's worth knowing that there are only a couple of situations where the police can get involved.

First one is an Emergency Protection Order - they're very rare. The police can remove a child from a parent with one of these.

The second is if they consider the child at immediate risk.

Otherwise they can't get involved: It's a civil matter and not a criminal one. They can do a welfare check. They will often tell a parent hanging onto a child in violation of an order that it's best they hand them back and to speak to a solicitor.

But that's it.

These's no such thing as residence or custody any more either - the terms are `who the child live' and `spends time with'.

Being a resident parent doesn't give someone the right to phone the police and demand the children are returned to them - as I say above the police can only get involved in the situation outlined above.

How easy it to change? She could ask around for other legal aid solicitors. How much would it cost is a `how long is a piece of string' situation. I've assisted people who have paid 6 figures and not got what they want; I've helped others who've done it for less than a thousand (I've managed to help people doing this before - I'm a McKenzie Friend).

Pemba Fri 10-Aug-18 16:21:47

There has been domestic violence before - against my cousin, not the child, and my cousin had a restraining order against her ex. He was not allowed to come to her home for drop off and picking up the child, had to use a third party. Does this make no difference?

The child has missed nursery and medical appointments whilst in the father's care this past week. The father's primary motive seems to be a control thing against my cousin. Although to be fair, he does seem to love the child, but is not thinking what is best for his child.

If my cousin thought he could potentially do this again, she would not have allowed him access. She thinks that her solicitor told her it would look bad for her in court if she didn't allow it. She also understood that the police would retrieve the child if he failed to return them again.

RandomMess Fri 10-Aug-18 16:41:44

After pulling the same stunt twice she could look into power of arrest to be attached for failure to return child in the future thanks

MrsBertBibby Fri 10-Aug-18 19:31:15

Your friend needs to apply for an order under s34 Family Law Act 1986 authorising a constable to take custody of the child. Quite doable as she already has a live with order.

Application in form C3, statement in support, probably exempt from court fee

Call court for an application to issue (depending on court) The judge can make the order without notice.

MrsBertBibby Fri 10-Aug-18 19:32:15

The solicitor should do it but it means amending the legal aid certificate so mega hassle.

Pemba Fri 10-Aug-18 19:46:40

Thanks MrsBert. So does that mean my cousin can complete that herself and hand it in to the court without going through her solicitor ? But I see it has a space for details of your solicitor, so how to deal with that?

The solicitor told her there would be an emergency court hearing early next week and the child would be returned to her. Now she has found out that the emergency hearing has in fact been initiated by her ex, who wants the child to live with him. Her solicitor did not inform her, or else she misunderstood. She was under the impression that the solicitor was applying for the emergency court hearing herself, on cousin's behalf.

She rang the court, who told her to come down to the court herself early next week, and the judge would grant an emergency hearing.

MrsBertBibby Fri 10-Aug-18 19:50:42

I would complete the forms, plus statement, leave solicitor's details blank, and take them to court. Does she have a date and time for his urgent hearing?

Pemba Fri 10-Aug-18 19:51:47

No the court official just told her to come down, preferably on Monday as soon as the court opens. And said that then there would be a good chance the judge would grant it.

Pemba Fri 10-Aug-18 19:52:17

Oh you mean ex's hearing, no, no date set yet.

MrsBertBibby Fri 10-Aug-18 20:02:43

Yep, get down there Monday with the C3, statement, and 3 extra sets.

Don't leave it to chance.

MrsBertBibby Fri 10-Aug-18 20:03:11

Also form ex160 for fees exemption.

Pemba Fri 10-Aug-18 20:08:02

Thanks for your help, MrsBert

MrsBertBibby Fri 10-Aug-18 20:21:03

Good luck to your cousin.

lostdad Sat 11-Aug-18 14:22:43

If you have a solicitor - speak to them before doing anything. They should be your first port of call when it comes to applications and will make this application for you if they think it has a chance.

As I said before...Emergency Protection Orders (s34 apps) are very rare because the risk needs to be extreme...and if a court has ordered contacted it is unlikely to believe this is the case unless there has been a huge chance of circumstances in a short time.

In other words...a s34 isn't the right application to make just because you want to recover a child.

MrsBertBibby Sat 11-Aug-18 14:48:45

No lostdad. An emergency protection order is made under s44 Children Act 1989.

This is an application for a recovery order under s34 Family Law Act 1986 .

It's precisely the right remedy for a parent with a "live with" CAP (or indeed an older Residence order)

I know, because I have used them in precisely similar circumstances, being a family solicitor of 20+ years experience, whilst you, I believe, are an unqualified person who charges people as a "professional McKenzie friend"

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