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Letter before Action and Urgent Application

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Zoso

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Hi All,

I have been a member for a while and check in from time to time and can see what a fantastic resource this forum is.

I've got a difficult situation now and I am not sure what to do, so would be really grateful for any suggestions.

I have two kids under 8 in primary school, our order is 'lives with both' approx 170 nights a year with me.

My ex has written to inform me the kids will not becoming to their home with me until further notice.

There is a long background story to this as always, but my question is how do I nip it in the bud asap.

My ex has breached previous orders and made the usual set of allegations against me.

Each time the only solution has been through court.

Up until this order I was a 'spend time' with Dad, I'm not sure what to apply for or how to apply as a 'joint lives with' Dad.

I want to find the best way of getting an urgent hearing asap.

Perhaps SIO on travel/ holidays, or something related to safe guarding concerns for the children.

I think I need to get a letter before action to my ex in the next 24 hours.

Many Thanks
 
Your ex has not quite got her head round the fact that she is no longer the resident parent or the sole parent with care has she? I would suggest getting a solicitor to do a letter before action, as she won't take any notice of you. If that isn't possible then I'd suggest something like.

Dear xxxxx

I am writing to request you fulfill your obligations under the Child Arrangements order dated x date. This is a "lives with both parents" order. There are no welfare issues and keeping the children from their home with me is harmful to them and also contempt of court. It is concerning to see them being kept from school and made to feel in the middle. If there are or were any issues, these should be discussed between parents or at mediation. The children had a lovely time over the Christmas holidays with me. Please confirm, that the children will be coming to their home with me at x time on x date as per the court order. I must also ask you to cease inciting fear and anxiety into the children.

Regards, Your name

And send a copy of it to social services.
 
Thanks for this Ash

Would it be a good to add a deadline for ex respond.

So, I can make application if there is no response.
 
I thought about that. If you put within 48 hours though, she might take advantage of that 48 hours to create more trouble. So another way of doing it is to wait until the next day and if you haven't heard anything, just submit the application. Or wait until the next date you should collect the children and if they don't come, then put in the application.

If you say within 48 hours she might get wind you'll be putting an application in - whereas if you don't she might just see it as bluster. If that makes sense.

A letter before action is just to show you tried before applying to court.

I'd suggest an enforcement application as it's breaching a "lives with both parents" order and you'll get a quicker hearign. But if you happen to have a holiday or break booked over Easter as well, submit a specific issues application as well. Unfortunately that does mean two separate application fees. If you get the specific issues order it could help a lot with the enforcement hearing.
 
Maybe leave out the bit about the children had a lovely time over the Christmas holidays, as that was quite a while ago now. And not strictly necessary. When did you last see them?
 
Can I just ask what the 170 nights is? Is it 5 or 6 nights a fortnight plus half school holidays? The fact there is a history and you got a shared care order after a spends time with order, shows that that was needed so the court needs to know what's going on.
 
It was essentially a stepped order. It's currently half school holiday's and 5 nights per fortnight. Before the end of this year it will be nights 6 per fortnight. Perseverance and the luck to find a good CAFCASS officer that could see no barriers to recommending that the children would benefit from living with both parents.
 
Advice I've been given previously was to not ask for anything or it turns into a variation hearing, but just to ask the court to enforce the order, so as to keep the existing shared care order in tact. However one lawyer also suggested "hinting" in the wording, that the court "may wish to consider that the children would be better living with me as I comply with court orders and support the childrens relationships with both parents".

Not a direct request for variation but something for the court to consider and something to get the wind up the ex perhaps.

Of course if she submits an application to vary then it would turn into a variation hearing anyway but I believe it's supposed to be better not to ask for that yourself. And you can also object to an application to vary as being "vexatious".
 
To add to that - if she submitted an application to vary in time for the hearing you could write to the court and object to it as being vexatious. Then it would remain an enforcement hearing and not a variation hearing. At an enforcement hearing a Judge can decide to amend an order to make it work better - at their own discretion. But if you ask for something to change it becomes a variation hearing effectively.

Although enforcement might not do much - it's another mark on her copy book and a good Judge might tell her strongly she has to follow the order and make the odd threat. Which might help.
 
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