You've had very good advice from ElnorRigby, lostdad and especially gillybean.
Couple of things need clarifying though for us;
- does your brother have Parental Responsiblity - was he married to his ex-partner, is he named as father on the child's birth certificate and when was the child born. (marriage confers PR automatically onto dad and if the child was born after dec 1 2003 then dad automatically has PR).
- does your brother have the Child Benefit in his name?
... as others have said, as there is no residence order in place, then one parent does not have the power to unilaterally dictate the parenting arrangements for the child.
The situation seems to be thus;
- your brother and his ex have previously come to a mutually agreed situation whereby dad would be the primary carer. Mother did her own thing (for whatever reasons) for a year.
- mum has now re-appeared and has unilaterally attempted to change a long-standing parenting arrangement that has been in place for a year. Presumably she consented to it otherwise it would not have been agreed in the first place.
- mum has not been acting in the child's best interests, because she has informed dad that she intends to keep the children and apply for state benefits, with no consultation or agreement.
- this is wholly unacceptable and likely to cause immense confusion and upset to the child, as he/she has been used to the parenting arrangements for a year.
... your brother needs to shake himself out of the shock, which is normal to experience.
Mum has no more right than dad to dictate what happens - any parenting arrangement should be made by full consulation and agreement.
Your brother needs to;
- go to the police and speak urgently to the Family Liasion Officer. He should calmly explain the situation, that a status quo of parenting has been in place for a year and the ex has tried to change it.
He should inform the police that he intends to collect the children from school as per the normal parenting routine and he would appreciate the police being on standby should there be a breach of the peace, which he anticipates as the ex has tried to take control of the children. He should point out that he is NOT preventing the children seeing mum, just that she has unilaterally tried to change this long-standing agreement without consultaiton or agreement. You anticipate it either going to family mediation or eventually the family court system and you request their help in this matter. Be very aware that the police will likely be sexist and presume that mum knows best - this is gender stereotyping of the worst kind and he should ask if the police would treat the situation the same if it was a woman making the same request?
- your brother should immediately make an appointment to see the school head and inform her of the situation, explaining that he intends to collect the children and he would appreciate the school informing him of any attempt by mum to collect the children. He should also say he has taken advice from the police.
- don't take any guff about "needing to see a solicitor" - that could take weeks, you don't NEED to use a solicitor for anything, including court (you can self-represent, like I did as I couldn't afford solicitors!). He needs to act NOW. He can always seek advice from a family law solicitor later ... time is of the essence and he needs to act quickly to prevent a new status quo being set in place. Because if he DOESN'T do anything then mum could turn around and say 'well he didn't do anything to change the situation so he obviously must have agreed and consented to this'.
- Inform the child benefit/CTC people that mum is trying ot make a fraudulent claim.
- phone the FNF helpline and get some advice, pop along to your local FNF meeting too (I'm the chair of a local FNF group).
- If it does look like it's going to go court wise then brother should consider whether he is going to apply for a sole residence or a shared residence order. The courts and the whole family law gravyboat don't really like dads making sole res applications due to their inbuilt gender stereotypes and sexist attitudes, so it's probably better to make a shared res application, but keeping the parenting/contact time to what it was before.
- your brother should also look into proposing family mediation to his ex, so they can hopefully come to an agreement without the adversarial court system. It's worth a try at least
good luck with everything.