[Solved] It may have stepped up a gear, and Im bricking it

I would recommend that you don't wait, but go for mediation as soon as possible - you may possibly come to some agreement before things get too nasty.

I'm sorry to hear about these recent developments and I can understand how anxious you are. Mediation would be beneficial if you can get your ex to agree to attend but if not you may have no option but to go to court. I will pass on your post to our legal team for their input, and hope we hear back from them soon.

I may be slightly overacting at the minute. Ive now been told, she is going to solicitors to seek advice, then its gone back down to sorting access out. But my point being with the access is that she does not contact me to arrange it, 80% of the time its down to me to make the first move, tbh I dont want to be doing that. I was just thinking maybe if she went to solicitors and pushed for parental responsibility/ residence I would be stuffed as she has got in first. Thunk it would go all the way as she is entitled to legal aid so has nothing to lose by going through solicitors

Have you tried to talk any of this through with her ?

Why not arrange to meet up and discuss - lay all your cards on the table, if you find that neither of you are getting anywhere suggest mediation ?

If she refuses to meet and doesn't want to attend mediation then apply for the residence order.

if you think that she has already started down this road then for your own piece of mind you have to get this cleared up.
Remember you can call the Childrens Legal Centre and discuss this all in detail with them, you would be able to ask what happens if she apply's for the residence order first, what you should do etc. When it comes to Child Law they are Yoda. The number to call is 0808 8020 008.

At the moment, it sounds as if you are in the dark and are imagining the worse (which is normal). Try to take control of the situation and make some positive moves - you'll feel better.

Dear Mr Fletcher,

It sounds like up until now informal arrangements regarding who the children are to live with and contact with their mother has been working quite well. Keeping matters informal means that there is more flexibility as you are able to make arrangements according to what is practical for both you and the mother. Mediation, as suggested above, would be a good route to go down if possible; it may be that sitting down and talking about the arrangements with a neutral third party would enable you to come to some agreement. If mediation is an option you wish to consider you may want to call National Family Mediation on 01392 271601. They have centres all over the country and there may be one in your area.

Having parental responsibility would mean that you have all the rights, duties and responsibilities associated with being a parent. It serves to formalise the position as a parent and can make things easier when acting as a parent. Having parental responsibility would mean that you would be able to speak to schools and have information about school reports, parent’s evenings and ongoing school matters. You would be able to give consent to medical treatment and various other activities that require parental consent. In relation to taking the children abroad, each parent should be seeking the consent of the other person with parental responsibility for such trips. If there is a residence order in place, the holder of the resident order would not need the consent of the other parent to take the children abroad for up to 4 weeks, however the non resident parent would still need the consent of the other parent. Parental responsibility also means that the one parent cannot change a child’s surname without the consent of the other party with parental responsibility. One way of obtaining parental responsibility would be to enter into a parental responsibility agreement with your ex partner. If she will consent to this it would be matter of going down to your local family proceedings court (located in either your local magistrates or county court) with your ex partner, filling in the relevant form, which is the C(PRA1) and then both signing the agreement in front of a court official and then sending it to the principal registry (the address will be on the C(Pra1). If the mother will not consent you may wish to apply for a parental responsibility order. The form to fill in for this court application would be the C100 and can be downloaded from the HMCS website at www.hmcs-services.gov.uk .There is a court fee payable for the parental responsibility order, which would be £175. There would be a court hearing, and the mother would have an opportunity to say why she is contesting the application, however parental responsibility is granted in the majority of cases.

Residence orders formally state who a child is to live with. If this can be agreed between parents there is no real need to go down the legal route, court should always be used as the last resort where it is not possible for parents to come to some agreement.

At the moment, with no court order in place, the children do not formally belong with either one of you so it is open to both you and your ex partner to make an application for a residence order. If you are concerned that the mother is going to try and change the arrangements you may wish to apply for a residence order now. Were you to be granted a residence order this would also give you parental responsibility for your eldest child.

The courts do not like to vary residency unless for very good reason. Having the children with you for the past 3 months means you have been acting as the resident parent, however it is not possible to say whether the courts would view this as a long enough period of time to establish you as the resident parent. When considering a residence application the court make the decision they feel is in the children’s best interests. They would base their decision on the welfare checklist, which would involve them considering the child’s physical, emotional and educational needs, the likely effect on the child of any change in circumstances, how capable each parent is of meeting the child’s needs and several other factors. The courts do prefer to keep siblings together where possible. If your ex partner applied for residency of only the youngest child she would have to show why it would be in the children’s best interests to have them living apart rather than both with one parent.

It is open to you to apply for a residence order either yourself or through a solicitor. A local family solicitor would be able to assist you in this matter, they would also be able to assist in relation to applying for parental responsibility if you decided to pursue that option. Should you chose to represent yourself, you will need to download the form C100 from the HMCS website, www.hmcs-services.gov.uk and again, submit to your local family proceedings court with the court fee. You may also want to look at forms CB1 and CB3 available form the same website, these are guidance forms on how to fill in the C100.The court will set a court date, which they will notify your ex partner of and the matter would be dealt with from there.

In regards to your 4 year old saying that she wanted to live with her mother; at the age of 4 a child’s wishes and feelings carry very little weight with the court. At that young age a child frequently changes their mind, and can be very influenced by a number of factors. Therefore the court will make the decision that they feel is in the child’s best interests, they will not just follow what the child has stated that they would like to happen.

As to whether you should make the court applications now or wait for you ex partner’s solicitor to contact you, that really is a decision for you to make. There is no correct way of handling these matters. If your ex partner makes the application for a residence order first you will be able to either contest it in court or file your own application for a residence order. The decision as to where the children live will be based on what is best for the child, so to this extent who applies for the residence order first will be of no consequence.

We hope this information has been of use to you. Should you have further questions you are very welcome to contact our advice line on 0808 8020 008.

Kind regards

The Children’s Legal Centre

Hi Matt,

Sorry to be so slow with this. The website here changed, and I have had to re-register to get back in...

I just wanted to say that a little of my recent experience may be useful. My ex is entitled to legal aid, and has launched a ridiculous case against me. However, I contacted the legal aid people (The Legal Services Commission) myself, saying that to grant their public funding to a case that was so unfair, would be ... "silly"...

Their response is this: they are essentially keen not to have to fund silly causes. If, therefore, your ex has refused mediation, this is a good enough reason for her legal aid to be withheld. If you write to her to offer mediation, then send a copy of that letter/ email to the legal services commission, they will take it very seriously. They assured me that the most likely outcome will simply be that, until my ex agrees to mediation, no legal aid will be granted to her.

It seems to have worked for me. It has all gone very quiet!

The Legal Services Commission have always been more than helpful to me - they are just brilliant: 0207 783 7000

Hope that may be helpful

Simon