Need help with C100- urgent or without notice hearings

[paintwater]

I’m taking ex back to court, already had papers half filled out as the current order wasn’t working and had too much flexibility which allowed him to cause problems wherever he could. I intended to send off the papers this week anyway however he has refused to return child after weekend contact (child is now at school so I’ll have him back this afternoon but he was due back yesterday morning) so now I want the application to be dealt with sooner. Does an urgent application have to also be without notice or can I request an urgent hearing without it being without notice? I’m not sure which option would be best but it needs to be dealt with soon!

The variation application can deal with the failure to return on time - it doesn't need an additional application.

That said, I read your other thread about the father retaining the child over the bank holiday weekend despite you refusing this, and do not think that the court would grant you an urgent application to hear that matter since the child will be back in your care this evening.

As for the order providing flexibility, that is standard, courts are prescriptive where they need to be, but also expect, quite rightfully, that parents will work together to resolve any minor issues such as dates for holidays etc. The court cannot be expected to provide for rigid dates for every year until your child is old enough to make his own decisions. You really ought to be trying mediation first.

JustAnotherLawyer I haven’t heard of a variation application, I was under the impression that I needed to start a whole new application (ex took me to court last time so I’ve not done this part before)

The concern obviously is that he’ll do it again as he’s threatened to before. He refused to discuss any issues, won’t agree to holiday dates, etc

I went to a MIAM but was told they felt mediation was unsuitable for the situation

JustAnotherLawyer I want it dealt with urgently as half term is coming up and I don’t want him to have the opportunity to refuse to return the child again

I think you need to find out from the mediators while they think it’s unsuitable.

I also thought it was unlikely you’d get an urgent hearing given the child will be back in your care this evening. Urgent hearings are generally reserved for issues where a child is at risk of harm. Tbh the issue of returning on BH or returning when school resumes seems like a petty argument to me but perhaps worth raising if you also have more serious issues to return with.

A variation application is a whole new application - it just means you are asking the court to vary the existing order.

MissMalice the mediator felt it was unsuitable as we already have a court order in place so even if we did agree on anything it would have to go back to court anyway to make it official, and ex is very disagreeable and refuses to discuss any problems so mediation wouldn’t get us anywhere anyway

I’m going to request an urgent hearing anyway and let the court decide if it’s suitable.

Are urgent hearings and without notice hearings the same thing? They seem to be the same part of the form but I can’t work out it I need to fill in both parts or not

The C100 asks you what order you are applying for - one option is to vary an existing order.

If you don't get an urgent hearing and you suspect he will do the same thing again during his next visit, then your only option is to deny the contact (and risk an enforcement application).

I would not suggest you withhold contact in the circumstances you have described.

JustAnotherLawyer I don’t intend to withhold contact unless he threatens not to bring him back again. Do you know if I need to fill out the ‘without notice hearing’ part of the form as well as the ‘urgent hearing’ part or are they separate things?

They are separating things. Without notice means he isn’t told before the hearing takes place.

If you withhold contact because he threatens to return the child to school on a Tuesday instead of a BH Monday again, you’ll be breaching the order because he says he’s going to breach the order. You run the risk of the judge criticising you both being as bad as each other. You might be better letting him breach the order - 3 occasions establishes a pattern rather than a one off - and then returning the matter.

You want a Urgent hearing, not a without notice hearing. MissMalice is right, a without notice hearing just means your Ex isn't told about the first hearing. Ultimately this will only delay matters as the court can only make decisions once they know both sides.

Whereas if you ask for a urgent hearing, your ex will be told about the hearing date and the court can make decisions having heard from you both.

I’ve requested an urgent hearing. For some reason I really struggle to understand forms no matter how straight forward they are, I’m usually fairly intelligent but my brain stops working as soon as I look at a form!

I’m not intending to withhold contact but this is part of a pattern, he’s gradually been bringing DS back later and later, ranging from half an hour to several hours, with various excuses some of which are reasonable but some are ridiculous! And often no excuse or warning at all.