Hi everyone! Thanks to you all for sharing your stories which I have found useful when preparing for my custody case. This is my first time posting here, and I am seeking advice from all the wise minds on this forum.
Today a Child Arrangements Order was issued by 3 lay judges at the family court that allow me to have my daughter every other weekend from Friday evening till Sunday. This was after i filed the request for it due to the mother terminating contact last year and me not seeing my daughter for 9 months. Prior to that we had 50:50 informal shared custody, with my 8 year old daughter spending every alternate full week with the other parent.
I applied for the court to restore this same arrangement, and the lay judges decided instead to severely restrict this to this new order, on the basis that it would disrupt the child's school routines. Her school is only 12 minutes drive from my home and everything was working perfectly before the mother stopped contact because she was angry with me for not agreeing to her request for something that had absolutely nothing to do with the child at all. We also had an informal parenting plan to ensure consistency of parenting. Yet they totally disregarded this.
I feel they have failed to consider the fact that they are disregarding both the child and her father's right to private and family life as enshrined in Article 8 of the Human Rights Act 1998 for no justifiable reason....there is no proportionality here, and this right is being severely restricted unjustly and disproportionately.
Cafcass sided with me as there are zero safeguarding concerns, there are no prior legal issues for me, no drugs, and only very minimal social drinking.
Please advise on how I can go about this as the lay judjes gave me 14 days to lodge an appeal, and i'm self-representing due to financial costs.
Thanks everyone, and continue to fight for your children as they cannot yet fight for themselves.
Get yourself a free consultation with a solicitor ASAP (many offer free 30 minute ones) and try to find some grounds for appeal.
How many hearings have there been? Have you had a section 7 report? Was this a fully contested hearing with evidence from both sides and cross examination etc?
You can't appeal a decision you simply do not like, but if the magistrates have not conducted the proceedings correctly, you would have grounds. To appeal, you need to seek permission from a District Judge listing the reasons. Look up practice direction for making an appeal in the family court. That should help you.
You will need the judgment in writing. Hopefully you were given that today.
IsemE,
I doubt article 8 of Human Rights can be invoked with regard to quantum (frequency & duration) of contact with your child. You and your child are not deprived of your human rights in that regard given that he is with you on alternate weekends.
As Yoda asks there are may variables to each case, issues raised, evidence, s7 report, recommendations, live evidence, written reasons by the court and more..
You do not need permission to appeal a decision made by magistrates. You are free to prepare your grounds of appeal, supported by a more detailed argument for each ground (skeleton argument), file your appellant's notice and serve.
Based your very brief summary the court should give reason(s) why it decided it is not in the child's best interest to have more staying contact with you given the points below, particularly with Cafcass supporting your application as you suggest (though unclear if there was an s7 report with recommendations in that regard).
Points:
a) No safeguarding concerns
b) Proximity between parent's homes/school
c) History of sharing care
Add to the list above as only you are aware of all the details in your case.
Also read the following case law: Re C (A Child) [2006] EWCA Civ 235
Magistrates must provide written reasons within 72 hours of decision in court. They need not be detailed or sophisticated as judge's judgements however they should answer the 'key questions' with regard to the application and issues.
Appealing is an uphill battle (though not impossible by any means). The test is that the decision is 'wrong' or 'plainly wrong' on law or fact and/or there was (serious) procedural unfairness and/or irregularity.
This is where case law can help, hence my suggestion of a close look at Re C which I sense might be of some good assistance to your case.
With regard to appealing, I think obtaining specialist legal advice is helpful, important, or even necessary dependant on the case and each party's ability to litigate, however also bear in mind that any solicitor's initial opinion may be influenced by it being in their interest that you proceed and as a result make money from you, to put it plainly.
Good luck,
Chapter
Thank you for your replies and very important pointers, Chapter and Yoda! To summarise:
1. There were only 2 hearings, the FHDRA 4 weeks ago and the contested hearing yesterday (30/5/18),which they also declared as the final hearing.
2. At the FHDRA, which was brief as the respondent refused a shared arrangement and I firmly requested the reinstatement of the status quo that existed prior to her terminating contact, an interim order was made for me to spend Saturdays daytime with my daughter for the 4 weekends until the contested hearing. I hadn't see her for 9 months. Position statements were to be swapped within a fortnight and also sent to the court (the court never received hers, so had to get one photocopied at the start of the contested hearing from a copy she had brought with her. She claimed to have posted it, yet had no proof of postage). Also, attendance to the SPIP course was ordered for both parents.
3. Cafcass did the usual safeguarding background and screening checks with the police and social services that must be made prior to an FHDRA. They interviewed both myself and the respondent. My daughter was not interviewed.They then wrote the court after these safeguarding checks, concluding there were zero safeguarding issues and that they would no longer participate in the process as they were satisfied about this. Neither myself nor the respondent have ever had issues before with the police or social services.
4. They confirmed that the child has had a stable relationship with me, and that their only concern was the long-term emotional and mental health impact on my daughter due to the mother repeatedly blocking her contact with me. They emphasized that the child has a legal right to a free and undisturbed relationship with her father which must be respected by the mother since she has blocked contact multiple times over the last 3 years whenever she wants to punish me for whatever reason she can come up with at anytime (nothing to do with the child's welfare).
5. She told them her main concern was the impact of shared arrangement on the child, even though that had been ongoing for a while with zero issues or complaints from her. In fact my daughter loves the idea of having two homes.
6. Cafcass advised the court that a parenting plan would resolve those concerns, and that it would be beneficial for support to be given for the respondent and myself to make one. However, we already had an informal parenting plan covering the child's routines, sleep times, nutrition etc. I informed the court of this during the contested hearing and in my Position Statement.
7. Cafcass concluded by advising the court that they supported my daughter spending unsupervised time with me because the mother was claiming that she didn't block contact but had instead offered me to see the child at her home (whilst knowing that we just don't get on and never go to each other's homes. They advised the court that Mediation be used to assist in developing a parenting plan to "resolve the mother's concerns about shared parenting and provide positive and consistent of co-parenting" for our daughter, failure of which the case would then go to a contested hearing; and finally that there are no outstanding safeguarding issues, so there was no further role for Cafcass in the case.
8. So it was just the FHDRA and the contested hearing only in court, with the court issuing the order immediately after the hearing and reading it out to us. (they had about 20min to discuss whilst the respondent and myself were asked to leave the court room)
9. There was no opportunity for Mediation to work out the parenting plan as recommended by Cafcass, the SPIP course attendances for both the respondent and myself have been booked but not yet attended.
*****Their stated reason for the order was that: "50:50 shared care would be too disruptive for (my daughter) and would not be in her best interests as a child her age needs routine and consistency during her school week". (She will be 9 years old in 3 weeks time). That is all they said. Yet I had clearly explained during the contested hearing how her routines whilst with me were fully synchronized with those at her mother's home, due to the existence of an agreed albeit informal parenting plan. I outlined in detail how those played out from waking up time till bedtime. The respondent didn't question this at all....she was using excuses like "what if your car doesn't start in the morning?" or "what if there are road works that delay you on the road whilst going to school"---these were her basis for claiming shared arrangement would be disruptive to the child. Sadly, the lay judges sided with that.
*****The lay judges ruled against shared arrangement even though the mother clearly stated during the contested hearing that "she had no problem with 50:50 arrangement if I could move and live closer to the child's school.....even though it is only a 12 minute (5.5 miles) drive from my home to my daughter's school. They totally ignored this.
Any further advice based on this detailed info? Thanks so much in advance.
Hi there
There is no obligation for the court to follow the recommendations but the court must explain its reasoning for departing from it. The question of whether to accept or reject a recommendation of CAFCASS or the opinion of any other expert is a matter of judicial discretion must always be exercised properly; the court may reject the conclusions of a CAFCASS report where it believes the report to be unbalanced, but it must express in its judgment the reasoning behind this decision. For this reason I do think that you have grounds for appeal, obviously you must wait for the written summary of their reasons.
Here’s an interesting blog article by a family law barrister that explains more about what is expected of magistrates
https://www.childreninlaw.co.uk/project/judicial-reasons-2/
All the best
Thanks for your reply and for the link to the very useful article, Mojo! I have received the full written reasons of the court and there are a few things to point out from it:
1. They only mention the Cafcass letter twice, firstly under the EVIDENCE USED section, simply stating: "We have also read the Cafcass safeguarding letter".
2. They mention Cafcass again under the WELFARE CHECKLIST, regarding HARM SUFFERED OR AT RISK OF SUFFERING. Here they state: "There is no suggestion that (my daughter) will come to any physical harm whilst in the care of either parent. Cafcass identified no safeguarding issues"
And that's it.
*They have not mentioned why they didn't consider, or why they disagreed with any of the Cafcass recommedations, specifically the explicitly stated Cafcass recommendation to use Mediation to develop a parenting plan that would provide consistent and positive co-parenting for my daughter and resolve the Respondent's concerns about the disruption to the child's routines.
***This is despite the fact that their ONLY explicitly stated reason for the order they made is that: "We believe a 50:50 shared care arrangement would be too disruptive for (my daughter) and would not be in her best interests. A child her age needs routine and consistency during her school week"
I believe that gives sufficient grounds to appeal on the basis of Inadequate Judicial Reasons. What are your thoughts, Mojo and others? Many thanks for your kind assistance, everyone.
As I said before, I agree, I think it does offer grounds for appeal. As Chapter has said, its an uphill struggle but if the appeal goes ahead, the court will look again, which will be by a higher judge with much more legal experience, however there are no guarantees.
We also have a partnership with DialogueFirst who are offering a free telephone consultation with a qualified lawyer, which may be helpful to you. Here’s a link
Best of luck
Thanks Mojo, once more! Unfortunately the link seems not to work when I click submit? It says the site cannot be reached.
Do you mind telling us which county are you in ? I suspect there are a number of factors that affect these decisions that have nothing to do which children's welfare, location of the court being one of them.
I'm sorry for that outcome, it's a difficult blow for your child's relationship with you.
Hi, superprouddad. I'm based in the West Midlands. Surely there has to be some consistency in legal decisions regardless of region, right? But i know the system doesn't really work that way, as proven time and again by some of these outrageous decisions. I'm hopeful that once I get an opportunity before a professional Circuit Judge and utilize relevant case law like the one Chapter referred to above, a better order will be issued.
Going back to the early days of my case I had a barrister at one hearing as the solicitor I had couldn't attend and offered a barrister to step in.
At the time it was with magistrates, during the hearing it became obvious to my barrister that the case was needing an order with more teeth to prevent the ex stopping contact all the time.
The barrister asked that the case be elevated to county court level....I'm not sure how to ask that but it was agreed and I've been at county court level ever since.
Maybe someone else here can advise on how to get it from magistrates to higher level of county court following your appeal
I'm sorry the link didnt seem to work, the service is still available to our members though and I recall another member Having the same problem, but tried again and was able to submit his details, I'd suggest that you keep trying and in the meantime I'll have a word with Admin about it too.