I'm looking at this purely from a legal perspective at present, would be wonderful if anyone is able to help!
I'm SM to my DH's 2 DC's. There is a previous CAO in place (under which I'm not named as we were not married or even living together at the time) under which the children live with BOTH Mum and my DH on a 50/50 basis- not primarily resident with either.. However, the arrangements aren't working as Mum refuses to work with us, as well as there being safeguarding concerns (Family Services and School, not just us) around the care she provides, so we have applied for a new CAO. This is not an amendment to the previous one, but an entirely new one, and so we made the application on a joint basis- as I am SM now, they live with me as much as DH and we feel that PR would be important for education and medical needs.
The court however, has decided before even having a hearing to remove me from the application. The reasons the legal advisor has given relate to me not being on the previous order (which should be irrrelevant to the new application anyway, and was not appropriate at the time) and not having PR- but me gaining PR was one of the major reasons for it being done jointly.
Due to the safeguarding concerns, we specifically want the order to state that they live with both DH and myself, so that if anything happens to him, they wouldn't default to living with Mum, and would remain with me as well as whatever she is awarded- not only would they have lost their Dad, but they'd then be entirely living with the parent where this is risk of harm.
Everything we've read, everywhere we've looked, says that I have the right to be named on the CAO, so we cannot understand on what basis the court can summarily remove me- can anyone advise on this at all? I'm so grateful for any help.
We do have a solicitor but she's not available over the next few days and if we're going to challenge this decision it needs to be done within 7 days.
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Legal matters
Step Parent/Child Arrangement Order
HappilyHadesBound · 21/06/2022 15:17
Mia85 · 21/06/2022 16:02
Everything we've read, everywhere we've looked, says that I have the right to be named on the CAO
Do you mean you have the right to be named on the application for the CAO? No-one has a right to be named on a CAO, it depends on the children's interests.
Does the court suggest that you need leave to apply? Step-parents don't have an automatic right to apply for a CAO as such but most will be able to either because the children have been treated as 'children of the family' or have lived with them for 3 of the last 5 years www.legislation.gov.uk/ukpga/1989/41/section/10 see s10(5). It's not clear whether that is the case for you but that might be the issue.
BeNice01 · 27/06/2022 20:50
“Due to the safeguarding concerns, we specifically want the order to state that they live with both DH and myself, so that if anything happens to him, they wouldn't default to living with Mum, and would remain with me as well as whatever she is awarded- not only would they have lost their Dad, but they'd then be entirely living with the parent where this is risk of harm.”
If DH was to pass away, his ex could apply for a new CAO and become the resident parent if the court believes that it’s in the best interest of the children and that previous risks are no longer present.
The court’s priority is to serve the children and even have discretion to make orders that very from the wishes of both parents.
prh47bridge · 28/06/2022 00:03
If that is your concern, all you need to do is get your husband to name you as his children's guardian. As the CAO says the children live with him, the appointment would take effect on his death and give you PR. His ex would then have to apply for a CAO if she wanted the children to live with her rather than with you.
Collaborate · 28/06/2022 13:26
A guardianship clause only takes effect if at the date of death there is no one living who has PR.
prh47bridge · 28/06/2022 14:06
My apologies. I'm wrong. If both parents are named as people with whom the child shall live, the guardianship appointment does not take effect until both are dead. However, if only one parent is named, the appointment takes effect as soon as that parent dies even if there is another living parent with PR.
prh47bridge · 28/06/2022 00:03
If that is your concern, all you need to do is get your husband to name you as his children's guardian. As the CAO says the children live with him, the appointment would take effect on his death and give you PR. His ex would then have to apply for a CAO if she wanted the children to live with her rather than with you.
knittingaddict · 28/06/2022 20:03
Other people seem to know more about guardianship, so that may be different to appointing someone to look after your children in a will. Is it?
Mia85 · 28/06/2022 20:07
prh47bridge is (I believe) a family lawyer and very much knows what she is talking about. This is a brief explanation of what guardianship is childlawadvice.org.uk/information-pages/testamentary-guardianship/ Generally the guardianship only takes effect where the child has no surviving parent with PR left and presumably that is what you were told when you were writing your will. If the children live with one parent under a child arrangements order then the position is different.
knittingaddict · 28/06/2022 20:03
Other people seem to know more about guardianship, so that may be different to appointing someone to look after your children in a will. Is it?
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knittingaddict · 28/06/2022 20:22
Not really. My understanding is that in the death of both parents you can say in your will who you would like to bring up your children, but that is not legally binding. If another family member disputes it then it has to go to court. The authorities will also step in if they think the people are unsuitable, for whatever reason.
Mia85 · 28/06/2022 20:07
prh47bridge is (I believe) a family lawyer and very much knows what she is talking about. This is a brief explanation of what guardianship is childlawadvice.org.uk/information-pages/testamentary-guardianship/ Generally the guardianship only takes effect where the child has no surviving parent with PR left and presumably that is what you were told when you were writing your will. If the children live with one parent under a child arrangements order then the position is different.
knittingaddict · 28/06/2022 20:03
Other people seem to know more about guardianship, so that may be different to appointing someone to look after your children in a will. Is it?
Mia85 · 28/06/2022 19:43
Do you have good legal advice OP?
It sounds a complicated situation and step parent cases are very fact dependent.
IfIhearmumagaintoday · 28/06/2022 20:30
My circumstances are different but I'm due back to take my ex to court to have our current CAO verified. I don't think you can scrap the old one just like that you would surely amend it?
What have Cafcass said OP about the safeguarding issues?
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