What next?

[Djc]

Final hearing in 2014 - access granted, initially supervised, then reviewed.

She appealled, failed and it took court two years to process. No contact in all that time either.

Granted contact in 2017, another final hearing, mother continues to agree but then refuses

Enforcement order in 2019 issued, cotact granted but still mother causes issues and prevents contact

Enforcement of an enforcement order 2020. Still no contact with some, covid not helping either.

Now, enforcement of and enforcement, of an enforcement order... surely not!!!

8 years of litigation, less than ten contact sessions and still the courts are powerless to take action. Allegation after allegation against me, contact agreed when proven false, still nothing happening.

Im a litigant in person now due to this, What action should I take which might bring about some contact for us?

 

[InvisibleIntellectual]

Your going to hate the answer - and the sad fact is that we all do ...

You have two options
- Ask the courts to enforce the order with a punitive attachment, explaining how the courts are letting you down on this.
- Apply to the courts to modify the order so that it is watertight

Your child must be at least 8 now - the courts should/would take their wishes and desires into consideration

 

[Ash]

Really sorry to hear of this situation. Your ex is ignoring orders and the system has been lazy. My concern now would be that your ex would say child doesn't want to see you. On the times you have had contact, how has your child been? Has it been easy.

Although it's depressing and maybe feels like no-one is doing anything, one motivating factor can be that - your ex is just getting on with her life and enjoying it! No thought for you at all (or the child either who may be wondering about you).

While Cafcass may be difficult (ie side with Mother a bit) I think a Judge would absolutely say that "contact" must be restarted, with a gradual reintroduction.

I think I'd expand a bit, in your application, on the two options that Invisible has pointed out. Firstly - don't use the term Access in applications - that term hasn't been legally recognised for many years now and has kind of negative connotations for Dads when used IMO. "Custody" and "Access" were changed to "Residence" and "Contact. But then changed again about 8 years ago to "Lives with" and "Spends time" with when Child Arrangements orders came in. If your first application was in 2014, most lawyers weren't then up to speed with the new terminology (and had to be dragged kicking and screaming into using the new terms - especially the ones who act for Mothers who still like to use "contact").

The point of the Child Arrangements Orders coming in was one order for both parents, that decided who the child lived with and who the child "spent time with". A joint residence order would now be called "Lives with both parents".

So I am wondering if you should apply to vary as well as put an enforcement application in. Except that would cost two application fees.

What does your current order say exactly? Is it a Child Arrangements Order or an older Contact Order?

Enforcing would be to get the same time back as is on the order, plus asking the Court to amend the order as Invisible suggests - eg with a penal notice attached. A penal notice doesn't mean she will be sent to prison if she breaches. What it means is, you can apply to have her sent to prison if she breaches again (which is very unlikely to happen and could be seen as hostile as well, but can be some kind of deterrant). If it's a fairly good arrangement in the existing order then maybe no need to vary (and a Judge can actually vary it on an enforcement application if they think it'll help the order work).

Your application wording needs to be good to get some attention. But the other issue is, if there have been a lot of breaches since you last enforced, then the court may view it that this is a new agreement - ie less time or no time - because it wasn't enforced. Hence my suggestion of applying to vary. And hence the wording of the enforcement application needs to be good and explain why you haven't enforced again recently. (You answered that already in a way - you enforced 2020 and Covid has been an issue).

So what happened at the enforcement in 2020? The idea of applying to vary is to ask for a different kind of order with more time. So if you had an order for say every other week-end and a midweek night (4 nights a fortnight) and half the holidays, you could ask for an increase of time and an order for lives with both parents (as an incentive to the Mother that breaching orders means something is taken away from her). You could also ask for a court guardian to be appointed - or for Cafcass to monitor that the order is being complied with.

Won't say any more till you say what kind of order you have

 

[Ash]

Just to add, your ex has also been playing the system - using allegations in the past for things to drag out - something stronger needs to happen. It also sounds like some court professionals have been sitting on the fence a bit in the past - where the cases heard by magistrates? You want a District Judge.

Noticed you posted this under parental alienation. Do you think she is trying to turn the kids against you (as well as preventing them seeing you?). As in have them refuse to come (or claim they refuse to come)? There's a bit of a line there - it's one thing for an ex to withold contact and it's another for her to have manipulated the children into refusing to come (the latter being parental alienation).

 

[dangermouse72]

Enforcement doesn't do much except tell your ex to follow the order - there aren't really any punishments if she doesn't and she's been getting away with ignoring that. But the more enforcements there are, the more they are likely to do something as there is a pattern of her not following orders. Definitely ask for the case to be heard by a District Judge - they are much more effective than magistrates. You could even ask for it to be reserved to the same District Judge from the last final hearing when the order was made, and for the court bundle to be got out and looked at from final hearing. And yes maybe say the current order isn't working or being complied with and ask for additional time and a penal notice to be attached.

 

[Djc]

Many thanks for your replies. Really useful.

First order 2017 was for contact every two weeks for two hours (supervised) CAFCASS monitor for 6 months.

Mother appealled two weeks later. This took two years to sort! Then dismissed.

Provisions of order in 2017 remain in force and a seperate company used to facilitate contact. Never happened and three Social workers used and all failed to get meaningful contact.

Mother refusing contact, enforcement order submitted. Same order applies.

Specialist Psychological assessment ordered of mother and father. Hence posting in here under parental alienation area as this is where this has ended up. She basically agrees in court, and then when finished, negates it all in total.

Last hearing contact ordered again, still refusing it all. Hence looking a another enforcement order or something stronger.

My son has a disability and although 11, has a age understanding realistic to a 5year old with learning etc.

 

[Ash]

Ok. Good that psychologists reports have been ordered as that shows they suspect the Mother may be an alienator - or at least if not alienating, refusing to accept you in your son's life. It's clever when they agree to everything in court and then go away and do something else.

So you're stuck with an order of 2 hours supervised a week that isn't being followed? And it's never progressed past that? If you're waiting for psychologists reports then presumably there's another hearing lined up anyway? Or has that been done - and if so what was the outcome?

I am guessing you've got past that stage and she is still refusing to follow orders. I would suggest applying to vary for 50/50 shared care, with increasing time from 2 hours a week for a month, then every Saturday for 3 weeks, then every other week-end and a midweek tea time for a month, then every other week-end and two midweek nights.

All of which would be pointless if she won't follow an order, so also for a suspended residence clause and penal notice to be added to the order. Suspended residence clause is - if she breaches again, residence is transferred to you. She will be playing on your son's disability and that will be in her favour for not transferring residence if he is very attached to his Mother (and knows no difference).

It would probably mean another section 7 report again though if asking for suspended residence clause - more delays and Cafcass listening to the Mother.

You could submit C79 enforcement and C100 to vary at the same time (but I think it would be two separate application fees). However you could ask for the first hearing for C100 to take place at the same time as the enforcement hearing, so you'll at least get an earlier hearing hopefully and speed up the process. I believe enforcement hearings taking about 6 weeks.

The other thing you could do - which could be expensive and your ex may refuse to co-operate - is use an independent social worker - there is an organisation of them on here that specialise in PA. If you get a report by them it may mean no need for Cafcass next time. But you've already had psychologists reports.

 

[Ash]

So I think

1) Submit C79 Enforcement and C100 Application to vary. With a covering letter requesting the matter be reserved to District Judge X from final hearing on x date. And in the C100 state all the things that have happened so far, there are no welfare issues, psychologists reports found xyx, the Mother is unable or unwilling to comply with any court order, and say it is imperative that something is done to ensure an order is followed. So you are requested an order as follows: List the increasing schedule, add the clause for suspended residence, ask for a penal notice to be applied to the front page of the order.

It's very important its on the front page as there was a case where it was deemed not to actually be a penal notice because it was on the back page! So application to have the Mother sent to prison failed due to an incorrect penal notice. Also ask for a court guardian for child to monitor the order is complied with. That will also provide more evidence if the Mother still refuses to comply, because the Guardian will have been in contact and involved.

Obviously you don't want to send her to prison at this time, but it's quite an incentive to follow an order. And if a Judge gives her a stern talking to saying he will transfer residence if she doesn't follow the next order, that might help too.

 

[Djc]

Ash thank you. There is another final hearing soon (post reports)

The three social workers have all been independent to date also.

My son also has a Guardian Solicitor and there are a Ward of court to be raised too. Were also already at Circuit Judge level too, hence I am keen to through in an application of some sort asap.

I do like the Penal notice... but it should serve to get some action i hope. And yes, she is certainly playing the disability card! Thanks

 

[Ash]

A bit confused there. If there’s another final hearing soon post reports, what kind of application are you thinking of putting in before then? Something to enforce an interim order? You could email the court and ask for an urgent directions hearing saying interim order not being followed. But if you have another hearing coming up soon they might not do anything until then.

How soon is the next hearing? You can put in a position statement just before the final hearing, updating the position and saying what you want to be ordered etc.

 

[Ash]

Guardians can be hit and miss as well. Plenty of case law where Judge has criticised Guardian and found against them.

Admire you for sticking at this and not giving up.

 

[Djc]

Final hearing is scheduled for Nov. Would an early position statement detailing what I want actually looked at? I have already applied for residency as I can't trust her or the system to provide contact with my son.

Every contact that has gone ahead, has been well documented to be very positive, and son loves it. Perhaps that's the issue for her, she knows he is happy within the contact!

 

[Ash]

No probably not - in fact they wouldn't want a position statement sending until a day or two before the hearing. Assume you'll need to do full statements for the final hearing anyway, which is when you can present "evidence". Are you self repping? So that's still two months away. If you've got an interim order that isn't being followed, you could email the court and ask for an urgent directions hearing due to the order not being followed. But tbh I'm not sure they could do anything - if she just won't do what they tell her. On the other hand, she might follow it to look good in the run up to a final hearing.

Were the psychologists reports favourable? Yeah they don't seem to like it when child is happy with you. Loss of control maybe. Do you have a partner or new family? That can sometimes be behind that kind of thing.

 

[Djc]

Yes, son is happy, I'm in a new relationship/marriage and everything is great. Psychologist reports and assessments are ongoing due to delays. Continued interference with contact teams as she is setting out additional points/demands on them without first going through all parties either... (court order stipulates what is happening, yet she is now making direct contact with the centre and adding to it as such!) Her counsel says its 'not seen as unreasonable requests' as its safety around covid, which it is clearly not! Its just anything to prevent access really.
Im just thinking weather ite worth doing anything at all due to impending final hearing No2, its unlikely to change anything really.

 

[Ash]

Her counsel can't explain it away as "reasonable requests" - if it's not in a court order - only the court can decide what should happen and whether it's reasonable or not.

What kind of stipulations is she making? Sounds like "Mother dictating" to me.

November is what - 2 months away (or is it early November). Are you still getting to see your son at all or is she playing the Covid card to prevent it? If you're not getting to see him then email the court and ask for an urgent directions hearing. You may or may not get one before the hearing in November, but it puts on record what is happening (in advance of a position statement). Sometimes the Judge may just issue some directions without a hearing. I know one enforcement case where the Mother was breaching the interim order, twisting what it actually meant, court was emailed and Judge issued another order (without a hearing) saying the interim order MUST be followed exactly as written.

 

[Djc]

Hearing is very early Nov. Not seeing my son at all, and yes the Covid card is being heavily used!

I like the email suggestion to the Court, I have nothing to lose, just fed up that her counsel keeps making rules as we go along and when I point out the issues in all of that, the return is that I can always bring it up in the hearing! Well, this time I will. Thanks.

 

[Ash]

Yes email the court. On the email header put the case number, and FAO Judge name and urgent.

In the body of the email put - urgent directions needed - case number xyz

Then something like

The interim order is not being complied with again and I have not seen my son for x weeks. It is another x weeks until the next hearing. I am concerned for his emotional well-being during this time (he has special needs) and ask the Judge for urgent directions please.

Currently I am supposed to see him (set out what it’s supposed to be) but the Mother has given unilateral directions to xyz changing the terms, citing Covid concerns. As both parents have been vaccinated and my son attends xyz in any event he is at no more risk of Covid from me than he is from going to xyz. I am also still taking careful precautions.”

Not sure exactly what the situation is - is he going to a contact centre and you seeing him there? Is he going to school? If he’s going to school then no argument over Covid concerns. Is she saying risk of Covid to son? (They also play the anxiety card).

 

[Ash]

Keep it brief, factual, unemotional. Don’t diss the ex (and don’t mention her counsel) but ok to state she has given unilateral instructions overriding the order.

 

[Djc]

Thanks Ash, really appreciate this.

 

[Ash]

Let us know what happens