Advice needed

[lighterw8]

My niece has 2 children aged 3 and 1yr old. She is not married to her partner and has recently split from him due to emotional abuse. He is on both children's birth certificate. She has allowed the father full contact with the children and been totally accommodating to his hours of work. Two weeks ago he picked the children up and has since refused to bring them back. No-one seems to be able to intervene as they are in a 'safe environment'. He is allowing no contact and has not even been taking the 3yr old to nursery as the nursery has advised the father that my niece can pick them up at any stage. He starts back work next week and has organised a child minder but is refusing to tell my niece where the children will be. We just all feel so helpless. She has been to a lawyer for a court date but this can take weeks. Has anyone experienced the same thing? Is there something else she can do to get contact?

I don't have any advice, but just wanted to say that I hope someone can help you. What an awful situation for your niece to be in.

I normally come across fathers who find themselves denied contact and it is actually quite unusual for the boot to be on the other foot with children so young.
Your niece needs to get into court asap. You can apply for an abridged hearing date (always worth trying) which will speed the process up. Based on what you have posted, your niece is the primary carer and it will be confusing and upsetting for the children to have lost all contact with her.
On what grounds is he refusing to return them?

There are no grounds....he is just being difficult. He is trying to make my niece out to be a bad person, which she is not. There is no drug or alcohol issues, and if myself or my family thought there was any issues we would be the first to step in for the children, she is an excellent mother. He is an extremely controlling person and just can't handle the fact that my niece has left him. He is allowing her this Saturday, for the first time, to have an hour at the local park with him present. This is the first contact she has had in 3 weeks.

I don't believe I'm reading this and if I didn't know better, (actually, I don't) I'd think you were a troll or a wind up merchant- no offence.
One hour in a park with him present?How very generous of him. Advise your niece to be careful. If it is possible, have a discreet witness so he can't make any allegations against her. It is likely to be an emotionally fraught hour and she will find it difficult to keep herself together. Come court, he will have to justify his behaviour and false allegations are the order of the day. Ensure that she keeps all communications by text and email so she has a record
Is she entitled to legal aid? She really needs to get into court and it would not be difficult to make the basic application herself and get the ball rolling. A mckenzie friend could help; failing that, court staff are often helpful for completing the basic forms.
I've only heard one side of the story but have already developed an intense dislike of this asshole.

A McKenzie friend is a person chosen by the parent to accompany her to court for moral support. They don't have the right of a "voice" in court unless the judge speaks to them directly. They can pass notes to the parent they are supporting but that is about the limit of their involvement.

This is truly appalling especially with such young children. Your niece really needs a lawyer asap to get the matter into the family courts.

BB - am I right in thinking that the father has PR by virtue of his name being on the birth certificate, because if this is not the case, he does not have the right to keep the children from the mother does he.

If he's on the birth cert, he has pr as the children were born after 1 December 2003. A MK friend (if they are capable) does much more than that. They can help her prepare statements and arguments for court and some get better results that way. You are not quite correct about ROA (rights of audience) This is at the discretion of the judge and can be granted at the outset allowing the MK to present the case. It varies from judge to judge but they are not infrequently granted.
A good barrister is invaluable but she needs to be wary of the inertia of many legal aid solicitors. In a case like this, they should already have applied for an abridged hearing date She also has the option of getting the ball rolling herself and instructing a solicitor and barrister for the main hearing.
Family law is not rocket science.

I have to say that what he is doing is appalling.

Its very rare i've heard this done.

Has to be said mind you that mothers do this a lot more and i haven't seen anywhere near the comments that are posted above!

Try I wish this was a wind up but unfortunately it is all true. My niece has lost nearly a stone in weight the last few weeks and is beside herself.
She has been to see a lawyer and is awaiting a court date, but this can take a few weeks.
We are a close family and I have always found sites like this helpful in dealing with family issues and support, hence my posts. The hardest thing to deal with is our sense of hopelessness to deal with the whole situation. Personally I just want to be Rambo and go in an collect the children but realise this is not an option.

I believe you. There are a couple of organisations that can give help and advice. M.A.T.C.H. (Mothers apart from their children) is one and Families Need Fathers (despite the name) also give support and advice to mothers and grandparents who find themselves in this situation. They hold local meetings and you could try their websites and helpline for one near you.
I went months without seeing my daughter and it is cruel. If she can make it through this, even one day, one hour at a time until she gets to court, it will turn around for her but she needs to make sure that the solicitor is on the ball and not dragging his/her feet.

I'm not a lawyer or a McKenzie Friend but I agree if the mother was the parent with the majority of care before this happened she needs to apply for a hearing without notice on the basis that disrupting the child's sense of security and established bonds is not in the interests of the child.

I would recommend she speaks to her solicitor and if the solicitor cannot give an explanation why this wouldn't be appropriate either change the solicitor to one that is willing to be proactive or go to the local court fill in Form C100 for interim residence, the form for an ex-parte hearing without notice and pay the fee. She should be prepared to hang about all day and will have about five minutes when a judge is available to persuade him/her that it is in the children's welfare for the status quo to be re-instated.

Anyone can accompany a litigant in person in court as a McKenzie Friend to give them moral support and take notes. As was said above family law isn't rocket science and a friend or aquaintence who is articulate and pays attention to detail may make a good MF. Most private children cases don't involve much law and boil down to everyday issues. The advantage of having a lawyer is that they have day-to-day experience working with local courts, presenting cases, cross examining and are regulated and insured should things go wrong.

Get this into Court asap - make application on C100 £200.00 fee (unless on benefits)
On the bit where it states what application are you seeking put in there residence/contact/abridge time for service to 24 hours
go to Court with your form and ask to see the Judge straight away. Tell the Judge you want the children returning immediately and it needs listing for a hearing immediately. You should get hearing date within the week. Pay a process server to serve the papers on him and send the acknowledgment back to Court.
A Solicitor shouldnt be waiting for a hearing date - she is getting duff advice there Im afraid

Tyr - what on earth do you mean the inertia of the legal aid lawyer?
Legal aid lawyers work bloody hard for not much return and lots of paperwork. The rates are in the process of being cut yet again.
Most legal aid Solicitors also do private paying work.

Ty everyone....I will get her to give the lawyer a phone again on Monday. Failing that will pack us a pack lunch and head up to the courts.

Agree with the above. Abridge time and you'll get a hearing within a week. Court should order child's return and restore the status quo. Agree with above posts in defence of LA solicitors. But if you want us to put more effort in perhaps you'd care to write to your MP and ask that pay rates increase (haven't gone up in last 10 years) as at present I get 1/4 of the rates with LA than I get for private work. This system is testing the commitment of all LA lawyers to LA work.

Absolutely Collaborate - the shame is that most of the legal aid lawyers i know love their job and love the legal aid work BUT the LSC is driving so many firms out there will be no access to justice soon.

Not unless you want to travel miles to see a lawyer who just wont have the time to spend with you and because they are swamped with work at crap rates.

And as for stopping legal aid unless there has been violence is going to clogg up the police with lots of false allegations and the Courts with all these people acting in person.

Collaborate,

I am opposed to cuts in legal aid but I suspect your suggestion of writng to MP's suggesting that lawyers get paid more will not prove to be a popular one.
The ever decreasing number of solicitors prepared to undertake LA work means that the good ones who do are frequently snowed under and that is the cause of the inertia I referred to; inertia not being the same as, for example laziness as one poster appears to have interpreted the word.
At any rate, I think we are agreed that, based on the information supplied by the OP, the solicitor in question does not appear (for whatever reason) to have acted with the vigour that the situation appears to demand.
She needs to rectify that on Monday morning.
In the interim, I am hoping that she actually saw the children today and that she was able to manage the situation.
Perhaps she will provide us with an update.

I don't think conclusions should be drawn, without talking to the solicitor. There may be reasons specific to the case for not applying urgently. In fact come to think of it we have all, including myself, assumed this is in England & Wales. IF it happened to be in Scotland a first hearing is generally much sooner after the court receives an application but solicitors often complain it is difficult to get heard urgently and party litigants haven't really got a cat in hells chance.

We are in Scotland and are going to try Monday morning first thing to get something sorted at the courts. Thank you everyone for your advise it is so appreciated.

OK, then it is a completely different ball game and the solicitor is quite correct. it is a foible of the Scottish legal system that unless there is a child protection issue were there is evidence of a child being seriously harmed through abuse or neglect the Scottish courts do not hear cases quickly. Sorry. However, once the court receives an application a hearing is normally held in half the minimum time of that in England & Wales.

Court rules and procedures in Scotland are complicated making it difficult for people to represent themselves in court. People without legal representation may now take someone with them to give moral support and take notes but it isn't the same thing as a McKenzie Friend and the person has to sit behind the litigant.

That explains a lot. STIDW, I believe Lord Hamilton had acquiesced slightly in that he would accept MK's in Scottish courts, providing they received no payment? Oh, and as you pointed out, they must sit behind the litigant. It's over a year since I read about it so I'm not sure of any progress since then.
OP, did your niece see her children yesterday?

No she didn't...she had sent him a txt just to say that she would bring a female friend along for support (who would just sit in the background) as he is not allowing any of our family contact either physically or by phone. He sent a txt back saying that she was not allowed to take anyone and that she could not bring a mobile and he would pick her up....the police advised us not to go under those circumstances as she was putting herself in danger.
We have provided the lawyer with statements and it is just a case of waiting it out by the looks of things.

Tyr, New court rules came into force in December 2010/Jan 2011. Lord Hamilton conceded "lay assistance" which isn't quite the same thing as a McKenzie Friend. It would be a breach of the rules for a lay assistant to charge for their services.

In his submission to the Scottish government Ian Hanger, the original MF, supported the principle of McKenzie Friends with the proviso that they "obviously should not be entitled to charge any fee for services." In some jurisdictions charging would be a breach of legislation regulating legal services.

lighterw8.

I would also suggest that in the meantime you post your question on another website as well as MN: " wikivorce" - make sure you put that you are in Scotland as this is different jurisdiction to "England and Wales". Wikivorce has a lot of good advisors who know Scottish family law inside out and can give you good solid free advice.