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Variation By Agreement in Writing

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Resolute

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Good afternoon,

Our final order states:

On Friday **/**/**, and every alternate Friday "thereafter", I pick my daughter up from school and have her until handover at 18:30 the same day.

On Friday **/**/**, and every alternate Friday "thereafter", I pick my daughter up from school and have her until handover at 18:30 on Sunday.

There is provision for handover in public place rather than school pickup during holidays. Variation to the order is to be agreed in writing.

Mum is not offering any additional overnights during holidays. She informs me of dates she will be taking our daughter to Italy and offers to make up the 3 hours or so that will be missed. She does not feel any limitation from the need to find agreement with me. If I disagree, she says I am unreasonable, makes groundless allegations, and does as she pleases.

Please make any suggestions on how to deal with this. She is behaving as though my daughter's time with me is at her discretion.

Thanks
 
So basically you have every other week-end, every in between Friday from school until 6,30pm, all year round, and no holidays ordered. Is that right?

When it says variation to the order is to be agreed in writing, it means that any changes to the ordered times and dates need to be agreed in writing. Just a text or email is acceptable, providing both are agreed. However, if your ex changes this unilaterally and it's not agreed in writing it's a breach of the order. There is a proviso there. If she does that more than a few times (most people say 3 times) and you don;'t enforce the order, then it's taken that you agreed to it! And changes the order.

So if she is breaching your time without agreement then technically you should enforce the order. However, enforcement over minor breaches doesn't always work particularly well and it sounds like your order needs to be better, so I would suggest application to vary instead, to include half the school holidays with defined weeks (if you don';t have school holidays ordered already) and to have Thursday overnight each week instead of Friday from school until 6.30pm.
 
The first thing to do would be to write to your ex seeking to vary the order by agreement. A BIFF email - brief, informative, friendly, formal. Something like

"Dear Ex Name

Child Arrangements

With regard to the current Child Arrangements for our daughter, it concerns me that it is not in her interests to miss time with me altogether, when you have holidays booked and I feel that it would be in her interests to have designated holiday weeks with both parents, in addition to the term time schedule. Perhaps you can let me know your thoughts on this. Regards, you"

Keep it vague and simple basically. She is not going to agree, but your email and her response will be evidence if you apply to court, that you attempted to resolve things amicably first. And enables you to say you attempted to resolve things amicably.

The next stage would be a MIAM (first mediation appointment) and either ask to be signed off to apply to court or have your ex invited to mediation to try and reach agreement (which is also unlikely to work). Then get signed off and apply to court.
 
Thank you very much for your helpful response.

Yes, that is right.

I have done most of what you suggested already, she has not taken up invitation to mediate and I need to do the MIAM. I will be mindful of your point about implied agreement to change the order if I do not enforce, I was not aware of that.

Our current schedule applies all year, term and holiday time. She breached for Christmas Eve despite my clear disagreement and is now doing the same during upcoming summer hols.

I cannot do the Thursday evening, journey is too long. Adding Sunday night to my weekend would be better.

Your BIFF outline is a great basis, thanks.
 
Should have said, I think I'll address Xmas holidays in writing. Get her unreasonable response. Apply for variation in the autumn.
 
Agree - it can take time via the courts - at least until Christmas this year probably! Unless she backs down and agrees at the first hearing.

So you live at a distance? How far away? If it's more than 45 minutes driving they will argue that Sunday nights aren't any good (re Monday morning school drop offs). The term time schedule isn't too bad with the distance I suppose. But it's unusual not to have any holidays in the order. The other thing is the court will think it reasonable that your ex wants to have holidays too. What she should do is say she has a holiday booked for two weeks or whatever, and offer you alternative times for the missed times and seek your agreement but she's just cancelling them.

Would you want half the school holidays? Or be happy with two weeks in summer and a few days over Christmas (with Christmas on alternate years)? The problem would then be half term and Easter holidays. Because you see her every Friday that means your ex can never have a full week's holiday during school holidays. So the order needs changing anyway to allow for school holidays.

So ideally your order should be something like now "in term time". Then designate which days/week-ends/weeks you have in school holidays.

I'd have your MIAM now. It lasts for 3 months. Just google mediators in the area, phone round them, book an appointment with the one you like the sound of/has the earliest appointment. That first appointment is on your own to explain the situation and the mediator explain mediation to you. They usually then invite your ex to attend the next session. If she declines or doesn't show up, you get signed off. What often happens is the ex just keeps delaying saying yes they want to attend but are busy blah blah or keeps changing the date. So then just ask to be signed off.

As an example of an order to include school holidays it could say something like:

Child spends time with Father as follows during term time:

From Friday x date

Week 1: xpm Friday through to xpm Sunday
Week 2: from School on Friday to xpm

And half the school holidays as follows:

The whole of May half term, half of February half term with consecutive days, keeping to usual every other week-end schedule with changeover on Wednesday midday, half the Easter holidays, a two week and one week block in the summer holidays, half the Christmas holidays to include Christmas Eve and Christmas day on alternate years.

All school holidays to commence on the last day of term and end on the first day of the next term.

If that is too much time for you to manage you could just have one full half term, two weeks in summer and a few days at Christmas. But that means you then don;'t get to see your daughter outside of those times during the summer holidays.

So there needs to be a designated holiday schedule for both parents. Every other week-end doesn't work well in school holidays.

You could have something tailored for the summer like two one week blocks and two week-ends. It's better to have the weeks defined so you don't have long gaps without seeing your daughter.

Eg for Summer holidays:

Weeks 1 and 2 with Mother, week 3 with Father, week 4 with Mother, Week 5 with Father, week 6 with Mother and an additional two days with Father before term starts (holidays are always longer than 6 weeks - a few days extra).

Likewise with half terms you could designate May half term every year, then say your usual week-end for February half term (you both get a full half term holiday).

The problem I find when you don't see them that often is the days they are away, added onto the ex's holiday times, mean an absence of 3 weeks sometimes. so you could also ask for a video call midweek if child is away for more than two weeks.
 
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Thanks SS, maybe you are right. Trying to get my head right to get going, been a tough few years.
 
Resolute said:
Thanks SS, maybe you are right. Trying to get my head right to get going, been a tough few years.
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I too had to do that after years of dv where I was perfectly conditioned. When the realisation came and I took steps to seperate from her, the controlling tendencies reached new levels. If I hadn't been able to be strong for my children then I probably wouldn't be on this planet now.

It appears a tumultuous place to be in right now, but it does improve. Take each day as it is - the ebb and the flow of what happens. Some days are good ones, others are not, but on those not so good days you can take measure at the end by reminding yourself of the love and admiration your children have for you.

Most importantly, take care of yourself, they need you there for them.

SS.
 
Thanks again Ash.

It is about three hours by train, I do not drive.

It is reasonable for them to have holidays, they went to Italy in December, April, and now August. I was willing to agree variation, but I wanted opportunity for some extra nights over the holidays and to take my daughter to see our family in Ireland.

I would like half of the holidays, but I am likely being made redundant in August and do not know what my work situation will be.

As a minimum, I want to alternate first and second half of Xmas holidays. A week at Easter. Give her 1st to 28th of August, I have beginning and end of Summer. Bank holidays on my weekends to be with me. My ex insisting daughter is not safe with me due to: health problems; alcoholism; bad temper; failure to respect my daughters physical boundaries; fraud; drug dealing; addiction to gambling; coercive control; emotional, psychological, and financial abuse; my malicious reports to social services; challenging the boundaries of contact; causing a scene at parents' evening... And any other stuff she has not made up yet. She will have barrister with nearly 20 years at the bar, partner in central london firm, and a paralegal in the hearings - I'll be LIP. I do not expect to get what I ask for, so why not go for half and see what I can claw in out of it.

We already have a video call every Wednesday at 6pm. Has lasted 2 hours and more.

She was sent mediation pack in December, I can book MIAM and have cert in 10 days. Just need to sort some bits and get a little stability. Close to running on empty tbh.

Best wishes.
 
StayStrong said:
I too had to do that after years of dv where I was perfectly conditioned. When the realisation came and I took steps to seperate from her, the controlling tendencies reached new levels. If I hadn't been able to be strong for my children then I probably wouldn't be on this planet now.

It appears a tumultuous place to be in right now, but it does improve. Take each day as it is - the ebb and the flow of what happens. Some days are good ones, others are not, but on those not so good days you can take measure at the end by reminding yourself of the love and admiration your children have for you.

Most importantly, take care of yourself, they need you there for them.

SS.
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Kind words and sound advice, thank you.
 
Ok. So you got your last order. So there can't be any welfare issues :) It's unsupervised time. Makes no difference if it's a week-end or a week. Is your ex wealthy or did she get this legal team via legal aid and allegations?

My view is (and I was advised this by a good solicitor too) - always go in asking for a lot MORE than you want, then you have room to negotiate down. Most people say go in for 50/50. You can't do that really due to the distance, but it's standard to have half the school holidays. We can help you with position statements and C100 wording (to pre-empt the things you know she'll say and undermine them before she says them!).

So current schedule is fine except for the holidays. You have very good reason to return for variation, because she is being unreasonable and won't allow any variation at all (and is actually breaching by not suggesting variation for the days she cancels). Have you added up how many actual breaches there have been? ie how many missed days that weren't agreed in writing? And on how many occasions?

Re the redundancy - this should give you more time? Or are you concerned about financially being able to manage the travelling and keeping your home for your daughter to come to? Holidays don't just mean going on holiday - they are time your daughter spends with you - even if it's time spent at home/days out/normal life.

I would suggest going for as much as possible. Not just time, but shared care/lives with both parents. It doesn't have to be 50/50 to be lives with both parents. You might not get the "lives with" but the argument is - your ex is not supporting healthy relationships for your daughter with you by cancelling the time. If you get it, it puts you in a much stronger position if you have to return to court again in future. It also means you don;t need your ex's consent to go on holiday. You're equal in that respect.

For shared care/lives with though, you need a minimum of 4 nights a fortnight in term time. At the moment you only have two because there's no midweek overnight.

If you're being made redundant, any chance you could move closer?
 
It has always been unsupervised, first order was five days a fortnight, second order six days a fortnight, final order every second weekend and friday in between. They went for contact centre throughout.

Her family is wealthy, I do not believe she got legal aid. Barrister tried like hell to her "because of risk to child" into first order, I argued it out. There is zero evidence of abuse or risk, it is all "lived experience."

Thanks for offer of help when this goes back to court, I think I'll need it.

Ex does offer make up time when she plans to breach, but 3hrs 15 mins moved from Christmas Eve cannot be made up for by 3hrs 15 mins at another random time. Her plan go to Italy in August will be second variation without agreement. She also tried to pick daughter up from school on a day it was due to be me. School intervened and sent her packing after more than an hour of upset and uncertainty for daughter.

Our final hearing got hijacked by her barrister's focus solely on "evidence" related to adjourned FLA applications. Child arrangements only came in as an after thought when we were already over time. I think judge was trying to punish her by making order apply over holidays.

Redundancy is a worry financially, but also worried about finding another job that gives the flexibility I need. I am still in the "family home" and paying joint mortgage. Daughter loves this house and wants to live here again. She has been really resistant to the idea of me moving. Here I have three beds, two receptions, a massive garden, her grandad down the road, and 10 min walk from the sea. Up there, it would cost more than double for a 1 bed flat. I talk to her about moving, she says stuff like "but this is my real home, I know it better than anywhere. I don't have nightmares here and I do not wet the bed. I am scared at my mum's. I'm not scared here, I know I am safe."

I went for shared care last time, not sure how realistic it is as next step. I think a spends time with order can stipulate passport arrangements for holidays, no? Daughter has dual nationality, no reason we could not hold a passport each in my mind.

Daughter has insisted throughout she wants one week with mummy, one week with daddy. I think shared care might be for when her voice is given more weight (she is only 6). Being limited to max two consecutive nights is the big problem for now, I need to get that to a week or two at a time to be properly out of the dog house she chained me in.
 
I'm confused as to how first order was 5 nights a fortnight, second order was 6 nights a fortnight, and now you're down to 2 nights and a few hoursa fortnight. How did that happen? Week on, week off would be ideal, but it's too far to travel too and from school every day. I
assume the time reduced because your ex moved further away?

If your daughter is able to have two passports then that sounds ideal and you could have written into the order that parents keep a passport each. Legally you still need her consent to go abroad for a holiday if she is the parent the child "lives with". If she doesn't give it, it means an urgent specific issues application every time, to get it ordered, which it will be, which is stressful and a court fee every time. Although if that happens a couple of times, you could get the order to be amended to say both parents may take the child abroad on holiday without the consent of the other - but to have that, you need designated holiday weeks ordered as well. It's an archaic situation - one safe parent having to ask permission of the other - and why shared care should be the norm.

It's in your favour that you live in the FMH and of course your daughter likes it there. Your ex no doubt feels threatened by this and probably fears you will try and take daughter away from her, so wants to keep the time with you minimal. That's another reason why, in communications, and court documents, it helps to stress the positive nature and your wish, for child having happy, loving relationships with both parents - to show you are being equal and fair, even if she isn't. Brownie points. And it's as it should be.

So no doesn't sound like you'll be wanting to move. I would think the current schedule is probably best, but with half the school holidays added.

So her barrister successfully derailed the last final hearing till the Judge got fed up and just ordered EOW all year round with the clause about variation in writing. I have had something similar myself. My ex was an expert at agreeing things at court then wasting time changing her mind and bringing up objections for so long that the Judge just wanted rid of the case. It's a clever tactic. So you're at a disadvantage there without a barrister yourself at a final hearing.

With school holidays you would be having your daughter there for a week at a time or even two weeks. The school holidays come round every 6 weeks so there are only 6 weeks at a time of the term time schedule. School holidays are important.

A tip also - the court prioritises holidays with a parent (meaning actual holidays that are booked not just time at home) over everything else - because of the benefit to the child. It's quite bizarre that you can get an order for a child to have a week's holiday at 48 hours notice, but wait months just to see them if they've been witheld.

I think, with your ex having a barrister, and self repping, you need to rely strongly on written things. Good position statements before every hearing. I find that means there is less to say as well. And it only has to be shared with the other side on the morning of the hearing, so they don't get much chance to think of how to undermine what you say. And as what you say can be blindingly logical and reasonable, it's hard to undermine. I am better on paper than in person anyway so that's my way of having dealt with things previously. But I have to say, having a direct access barrister for a final hearing can get you the order you want. They are experts in court and can persuade Judges. If you have any savings and can afford 4 or 5k for a barrister for a day it is absolutely worth it. And because you're in the right and there are no welfare issues, then your barrister is likely to knock spots off hers (the key is to get a better barrister!). But it's a more even playing field with two barristers, especially when hers doesn't have much of a case. No welfare issues.

So has she actually breached at all? Regardless of that it definitely sounds like an application to vary is needed - citing things like cancelling Christmas eve and how offering 3.5 hours elsewhere does not equate to spending part of Christmas with your daughter.

What would you have to do if you didn't get another job? Presumably you could claim housing benefit and get the mortgage paid? But travel would be unaffordable. What line of work are you in? Could you set up self employed and work from home? Risky I know, income wise, depending on your line of work.

Maybe you need to find another job first and then apply to court for variation. Most jobs have four or five weeks holiday a year. Bank holidays are extra and so are week-ends. So in school holidays you'd be best having split half terms (only 2.5 days to take off work 3 times a year). That's 7 days of holidays. There are then 3 weeks in summer and about 9 days each at Christmas and Easter (two of which are a week-end). You don't have to be off work to have your daughter spending the week with you though. You would be there morning and night and could have her go to Grandad during the day :)
 
First and second orders were daytime only, no overnights. Week days, school pick up to bedtime (at mum's) term time, 10:00-bedtime in the holidays. Every Saturday she travelled to FMH, daughter at home with me from 10-17:00. Final order gave me overnights, she wanted only a few hours at a time with handover supervised at contact centre.

Have to come back to other bits, work.
 
She has cancelled contact without agreement. Her offer of zero additional nights over the holidays was not reasonable in my mind. The judge deliberately restricted her with the order and she is just doing as she pleases. She is totally digging in her heels on two nights a fortnight as the absolute maximum, concerns for our daughter of course. There is nothing to it, but I think her resistance alone is barrier enough. In my mind, two nights a fortnight is the minimum and if she is not flexible on that, why should I be willing to agree 12 consecutive nights away from me. Max in the order is 7.

No savings, last two years has been a struggle to make ends meet. Possible help from family member on costs if necessary. Clerksroom Direct gave indicative cost of £600-£900 + VAT for hour hearing, £1250-£2000 + VAT for full day. As applicant, I would ideally like representation throughout so that bundle is under my control. They really took the mickey with that last time.

I do need to see what my position is in terms of job and home before making an application.

Best wishes
 
I wouldn't go with Clerksroom Direct. There are good and awful barristers just like solicitors. Ask for a recommendation nearer the time from Dads on here who have used one and been happy with them. Any barrister costing less than £2000 for a full day hearing is money down the drain really. Just the way it is. To my mind it's either 3 to 4k for a barrister or self repping. But for a final hearing it helps to have a barrister for cross examination and to win the case.

I think her resistance alone is barrier enough.
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Nope. Thing is - that is up to the Judge and Cafcass. She is just showing she is resistant to a healthy relationship for daughter with her, which will count against her. Do you think she'll be able to afford legal teams again?
 
Sharp intake of breath, ok, need to really tap family at 3-4k a day.

She will be able to afford legal teams again, probably as long as it takes. Family has the money and nothing to go on but survivor narrative.
 
Counsel fees are determined based on their ability, published ranking, geography, chambers, but one of the most determinative factors is their year of call.

So a very talented but not very experienced counsel who was perhaps only called to the bar 4-5 years ago would ‘only’ cost about £1k -£1.5k for a full day hearing. Arguably you are getting a bargain in terms of their intellect and ability against their inexperience. At that point case complexity comes in and can help determine if experience is in fact almost essential. As with most things, all cases are different and this can also apply to choosing a barrister.

To be safe, and if you can afford it, you would aim for an experienced counsel of at least 10 years or so, who perhaps is praised in some case law by the judge as often happens and hence it is affirmed that they are ‘good’.

Look at their areas of ‘expertise’, not just areas of practice. Also look at their published cases - if any.

Finally, most will accept a quick face to face meet to shake hands before proceeding (at least they did before Covid). See if they make you feel confident representing you, if you feel they will fight your corner effectively and tenaciously. If you don’t get that sense, look elsewhere.
 
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Resolute said:
Sharp intake of breath, ok, need to really tap family at 3-4k a day.

She will be able to afford legal teams again, probably as long as it takes. Family has the money and nothing to go on but survivor narrative.
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It's only the one day. The one day final hearing :) If you did want to use one for an earlier hearing, those are half day hearings - so half the cost obviously. Normally I'd say you'd only need one for final hearing, but it's tricky if your ex uses expensive barristers throughout. Which is why good position statements can speak for you before a hearing and get your voice heard and pre-empt any arguments they might make.
 
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