Help with legal wording

[Djc]

Can someone help with the legal understanding in this wording. My ex has finally allowed access (working well).

its her legals wording that confuses me going into a contested final hearing of an enforcement order (of an enforcement order)!! ;

'is to stand dismissed if not estored in 6 months'

I see this as an opportunity for an agreement now, and then throw a spanner in the works around 4 months time. Like trying to move to Scotland again!

1. Father’s application to enforce/change residence is to stand dismissed if not restored in 6 months
2. Mother’s application for a non-molestation Order and relocation to Scotland applications are to stand dismissed if not restored in 6 months

Can anyone help? Thanks

 

[Resolute]

It sounds like a proposal to "adjourn with liberty to restore."

Your application to enforce would be put aside without consideration of the evidence or a decision. For 6 months you would have a right to restore the application and have it properly heard. After 6 months that evidence is dismissed.

Whether or not you should accept the proposal is a more detailed matter. Some of the relevant questions:

Are proceedings other than the enforcement ongoing?

Have they offered all that you wanted?

Have you already provided all of the evidence you have relating to the enforcement?

Is there a phrase along the lines of "the evidence in one to stand as evidence in the other" anywhere in the proposal?

It might be worth thinking about a prohibited steps application regarding Scotland. The non-mol adjournment is a prickly issue, if it is not heard it could end up being a stick they wave at you for the rest of time (my current situation).

Take lots of advice and think carefully, my decision to accept an "adjourn with liberty to restore" proposal is the one I look back on with most uncertainty.

Res.

 

[Resolute]

I have just seen the change of residence bit, strange way to word it: "enforce/change residence." In my experience it is not accidental when solicitors use bizarre phrasing.

Ok, perhaps this is an attempt to reposition things and put aside the question of residence. An awful lot of thought is necessary here. I suggest you make sure members understand the details and take your time.

 

[Resolute]

Just bumping this, I think other members know the case better than me

 

[Ash]

Who wrote the wording? Her solicitor or the court? Not quite sure what's going on tbh You say you're going into a final contested hearing (as part of an enforcement of an enforcement) - is this for change of residency? (It mentions that).

If you're going into a final hearing, her solicitor shouldn't be writing any order wording. Unless they are proposing some kind of agreement for a consent order. It's a bit late right now so I'll come back tomorrow.

 

[Resolute]

I think it is probably a proposal for a "consent order" in place of the hearing.

Djc, I think you need to lay out quite a bit more detail on this. A proposal to "adjourn with liberty to restore" could be a jackpot or it could be massively to your disadvantage. The context is really important and needs to be carefully assessed.

 

[Ash]

Hi DJC - what is the wording in? An order? A letter? A position statement?

 

[Djc]

Who wrote the wording? Her solicitor or the court? Not quite sure what's going on tbh You say you're going into a final contested hearing (as part of an enforcement of an enforcement) - is this for change of residency? (It mentions that).

If you're going into a final hearing, her solicitor shouldn't be writing any order wording. Unless they are proposing some kind of agreement for a consent order. It's a bit late right now so I'll come back tomorrow.

The wording within Para 1 and 2 are suggested elements that they wish to put into a concent order. She initially refused contact at all costs, the court issues an enforcement order recently, with a Penal notice attached. Having allowed contact, moving forward the suggestion is I remove the residency application and she removes the Mol order amd the application to move. None of that I have an issue with, the wording her legal wants to add gives me a few questions around the element of putting in a timeframe. For me any dates should be removed in total with no timeframes.

 

[Djc]

Hi DJC - what is the wording in? An order? A letter? A position statement?

Email at present as a suggestion for the concent order for final heating.

 

[Ash]

So they are trying to negotiate a consent order with you? That usually suggests (IMO) that they fear the hearing may not go well for the ex. If you're not represented, don't agree anything for a consent order at all. If you are represented at the hearing there's a possibility of negotiations taking place on the day for a consent order. Without knowing all the details though, I'd be inclined to let the court decide and not agree to a consent order.

If it's an enforcement of an enforcement then clearly your ex has been up to all sorts and you need results to make sure she doesn't keep doing it.

Anyway if it's proposed wording for a consent order it sounds like they're trying to do a deal - eg saying if you agree to withdraw the residency application, we will agree to withdraw the NMO and relocation application.

The wording is written for the court and they want you to agree. Don't do it. Any consent order written by your ex's solicitor will be full of tricks and loopholes and favourable to your ex.

On the other hand - if it is costing you both a lot of money and loads of hearings with allegations and an nmo - they're kind of offering you a quicker easier route.

Make sure you keep and print out that document. It could be useful evidence for the final hearing - if they try and argue for relocation and nmo then your statement can point out that they were prepared to drop that so there is no reason for either to be upheld.

A couple of questions:

When is the final hearing (ie how long away)?
Did you apply for a change of residency as part of enforcement?
Are you LIP or do you have anyone representing you?

I'm guessing you're LIP and they are trying to get you to drop things. Sounds good to me - sounds like they/ex are running scared.

The other reason they try and push for a consent order is - to get you to withdraw your application and that is what that wording sounds like - ie they would send a consent order to court to be sealed which cancels upcoming hearings (and prevents further applications for x months eg).

My ex and her solicitor tried this - to try and get me to agree to a consent order and withdraw the application. Don't do it.

 

[Ash]

Are they pestering you and pushing for you to agree consent order wording? I know of another case where this was going on and it almost tricked the Dad but the wording was ambiguous in places and actually made the rest of the order a worthless piece of paper. So he let it go to court and got his 50/50 order. There were threats and pressure (and lies) and all sorts to get him to withdraw the application.