Can any professional help me family law question

[motherofanearlyfouryearold]

Ok. Here goes. This will be long.

My husband has a 13 year old daughter, he did have a contact order for contact.

In jan sd's mum had a stroke. It has now become clear that she won't be retaining home. Since mum became ill sd has been staying with her maternal grandparents, maternal grandparents have cut my husband out of her life. They have cut off her mobile phone and not allowed any contact since February.

She is suffering, a family friend says she seems depressed and she is struggling to keep up with school/home work.

Any advice on what we can do, we have a C100 form and want to apply for residency due to her mum's incapacity. What do you recommend?

Get on and issue the residence application.

Check it's the new C100. They changed on 22nd April and some courts are not accepting the old forms.

Under the new rules you would have to have attempted mediation but I'm unsure as to whether that would be with the mother (is she well enough?) or the grandparents (who presumably have no legal right to be withholding contact).

There is also no such thing as residency anymore, or contact orders - they have been joined together as a Child Arrangements Order. If you can't afford a solicitor, get a decent McKenzie Friend (there's a list on the Families Need Fathers website). Don't waste time. The longer he doesn't see his daughter, the weaker his case will be.

Good advice from nomoretether.

If you are going to put an application in organise mediation now. The fact the child is 13 means her point of view is very significant and her wishes will be taken into account by the court.

If you use a McKenzie Friend, make sure you get recommendations. Would suggest your other half joins and makes use of the support meetings they have around the country.

I run one of the branches with my partner (a stepmother like you) and act as a McKenzie Friend - the situation you are both in is one I am very, very familiar with.

As an interim measure (assuming your dh has pr), could he maintain some form of contact (such as letters) via the dd's school? Or email her if he can get hold of her address (most secondary students have a school email)?
Can't advise on the legalities as I've never been in this position.

She can't issue an application without having attempted mediation can she, babybarrister? Who is she supposed to mediate with? The ill mother or the grandparents who won't have PR?

I assume the grandparents are also breaching the current contact order?

This seems to be current position re mediation from the family law week site.

Pre-application

The Mediation Information And Assessment Meeting (MIAM)
MIAMs are central to the CAP 2014. The provisions are contained in paragraphs 5.3 – 5.12.

MIAMs can be carried out only by an authorised family mediator. If the parties are willing to attend together, and this is assessed by the mediator to be safe, the meeting may be conducted jointly. Otherwise separate meetings will be held.

Once at the MIAM information will be provided about mediation, ways in which the dispute may be resolved otherwise than by the court, and the suitability of mediation for trying to resolve the dispute. The mediator will also assess the existence of or risk of domestic violence or harm to a child who would be the subject of the application.

Prospective applicants must attend a MIAM before making an application to the court for determination of most issues concerning a child. The term 'relevant family application' is defined in r3.6 FPR.

In certain circumstances prospective applicants are exempt from the MIAM requirement. The categories of MIAM exemptions are contained in rule 3.8 FPR. They include:

domestic violence
child protection concerns
related proceedings being issued in the previous 4 months
urgency
disability leading to an inability to facilitate a MIAM
lack of contact details for respondents
imprisonment/bail conditions preventing engagement
non-residency in England and Wales
that a child would be one of the prospective parties
unavailability of MIAM facilities.
Practitioners should have regard to rule 3.8 FPR in full for details of exemption categories.

The CAP 2014 indicates that it is not expected that victims of domestic violence should attempt to mediate or participate in forms of non-court dispute resolution. It is also recognised that drug/alcohol misuse and/or mental illness are likely to prevent couples from making safe use of mediation or similar services (paragraph 5.2).

Alternatively, an authorised family mediator may provide a mediator's exemption indicating that mediation is not suitable as a means of resolving the dispute.

The prospective applicant, or their legal representative, must contact a family mediator to arrange attendance at a MIAM. A prospective respondent is also expected to attend a MIAM, whether a separate MIAM or the same one attended by the prospective applicant. Where at least one party is eligible, the Legal Aid Agency will cover the costs of both parties to attend a MIAM.

Following issue of an application, the judge is obliged to consider, at every stage of court proceedings, whether non-court dispute resolution is appropriate (paragraph 6.1). The court may direct that the proceedings, or a hearing in the proceedings, be adjourned to enable the parties to obtain information and advice about non-court dispute resolution and where they agree to participate in the same (paragraph 6.3).

So you don't have to mediate but you DO have to attend a meeting where they tell you about mediation... If grandparents won't co-operate then clearly mediation is a non starter, that only works if everyone involved genuinely wants to give it a go.

Just to put a spanner in the works, why does the father need an order at all? Sadly, the mother is incapacitated, and the father has PR (?); the grandparents have no status, in the absence of an order. I appreciate that dad probably shouldn't swoop in and collect the child, but there is actually no legal reason why he cannot...perhaps if the child was in contact with her dad, that's what she'd say she wanted, and that's why GP's have stopped contact?

...and I believe the disability exemption might apply to the MIAM too, and who would be the respondent anyway, if the GPs have no more right to retain the child than, say, I do?

I am not sure if having a stroke means the mother has no legal capacity. It's rarely a good idea just to swoop in and 'retrieve' children, could be very distressing for all if it goes badly.