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Live with / live with order, permission to leave England and Wales. And a Mediation report question

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BigLes

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Hi All,
1) Does anyone have experience with a lives with / lives with order when the proportion of times the child spends at the parents houses is divided 33/67%? I’ve heard it was uncommon in the past but recently the split of time is less important in granting such an order.

2) in the event that a live with / live with (aka joint custody aka shared care) order is given, do both parents need to receive a letter of permission from the other if the child is to go abroad? Or does neither parent need a letter of permission?
Also, I’ve read that although taking a child to Scotland or N. Ireland isn’t abduction legally speaking (Child Abduction Act 1984 refers to UK), it would still be in breach of the CAO and therefore needs permission.

3) If a parent A wants to go on holiday with his/her child, but parent B who has a “lives With” Order refuses permission, Parent A must apply for a MIAM and a fast-track Specific Issues Order (total cost now would be around £370. If this happened again on a later date would Parent A then have to go back to court and repeat ad Infinitum? This effectively adds on £370 and half a day spent at a court appearance and a MIAM to the cost of each holiday abroad. Unless I’m missing something? Is there a solution? Is asking for a ‘Lives with / Lives With’ Order a solution?

4) finally, slightly unrelated but does a Mediation Report ever get seen by the court or is it for the parent’s eyes only?

Thanks
 
1) judge recently granted a shared care lives with both parents order - shared care split is 60/40

2) With said cao, both carers with parental responsibility is legally allowed to travel out of the country for 21 days without permission from the other carer

3) if the other parent refuses permission for no reason, the parent with 'spends time with' can submit an emergency specific order to travel and in the hearing request to have the cao varied to a shared care lives with both parents (if no safeguarding issues). This isn't guaranteed.

4) Depends what you mean by mediation report. A mediation Memorandum of Understanding can be submitted in court. Communication in the form of emails or personal disclosures are not allowed.
 
1) judge recently granted a shared care lives with both parents order - shared care split is 60/40

2) With said cao, both carers with parental responsibility are legally allowed to travel out of the country for 21 days without permission from the other carer

3) if the other parent refuses permission for no reason, the parent with 'spends time with' can submit an emergency specific order to travel and in the hearing request to have the cao varied to a shared care lives with both parents (if no safeguarding issues). This isn't guaranteed.

4) Depends what you mean by mediation report. A mediation Memorandum of Understanding can be submitted in court. Communication in the form of emails or personal disclosures are not allowed
 
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Thanks a lot. On point 4) I mean a statement of outcome. It’s seems like specific dialogue/statements can’t be shared in court but could a parent say, for example, “mediation was unsuccessful as Miss XYZ refused to allow overnight stays”. Or could the written summary of the mediator be repeated in, say, a position statement? Thanks
 
As I understand it, anything discussed at mediation can't be used in court. Proud Dad has answered most of it. Yes you can have a shared care/lives with both parents order without it being 50/50. It used to be that it needed to be at least 5 nights out of 14 to be shared care but they have done 4/14. Basically it's supposed to be at least a third of the time for shared care - but there are exceptions.

5/14 is everyother week-end friday to Monday morning (3 nights) and 1 midweek overnight each week. 50/50 is the same apart from 2 consecutive midweek overnights each week.

To my mind 50/50 is better as you both get equal amounts of time and no long gaps in schedules. For example with one midweek overnight - if it's always, say, a Wednesday, then one week the child goes 6 nights without seeing you (I actually have alternating midweek nights by agreement to get round that - so alternate Mondays and Thursdays - but that is unlikely to be ordered unless both agree on it).

6/14 would be 2 midweek nights one week and 1 midweek night the next (plus the 3 night every other week-end) - that could also work to avoid a long gap.

As Proud Dad says if it is lives with both parents, either of you can take the child abroad without needing the consent of the other (providing it's within your own court ordered time). N Ireland and Scotland would be ok too as abroad means any other country.

If your ex had sole "lives with" and refused to let you take child on holiday (or release the passport) then yes you need to apply for a specific issues order. Technically, if this is an urgent 48 hour application before a holiday, then you don't need a MIAM - although I have usually done one anyway and just asked to be signed off to apply to court - rather than risk the application being rejected. But if it is really urgent - like a week before you're due to go and she refuses then you can do a 48 hour application and they would accept no MIAM (you'd have to give reason for that on the form and provide evidence of the booking).

As to how to prevent that happening again, it depends on the circumstances. If you have a clearly defined court order for your holiday dates and she is refusing to let child go, it's not a breach because it hasn't happened yet (it would be a breach afterwards if you did nothing). So you at the time of the specific issues application for the holiday you could ask the court to add a clause saying either parent can take the child abroad without the consent of the other, and ask them to add a clause saying that you hold the passport in future. I think they are unlikely to make the order into a shared care order without a full hearing (specific issues urgent hearing is usually just that one issue but they can amend the order I believe - but you probably need to clearly ask them to do that when you apply. They can make a strong judgement against her and order costs at a specific issues hearing (as I had) which will deter her from doing it again. The Judgement could be used in any future court case to either change the order to shared care or apply for residency if she did this a few times.

If you know well in advance of the holiday that she is refusing, that is a different - if you apply well in advance, it's not an urgent hearing so you would need a MIAM. But it's almost the case that you are expected to try and resolve it yourself and if within a week of the holiday you still haven't got clear agreement from her, then you apply for the urgent specific issues order.

I've had to do it twice. My ex now knows that if I have a holiday booked I can go to court at short notice and there could be another judgement against her - so that is leverage. ie she follows the order when she knows I have a holiday booked. The difficulty is when you have holiday periods ordered and aren't planning to go away. Then you just have to wait and see if she breaches it and if she does you enforce the order.

But yes every time you are forced to have to apply to court, it costs another court fee (but not always a mediation fee) - however if you have it in writing that she is refusing to let you take child on holiday when it's during your court ordered time and you have to apply for specific issues - then ask for costs.

It's unusual for costs to be ordered in family cases - there is a benchmark - the Mother's behaviour needs to be seen to "reprehensible" for costs to be ordered. So evidence of hostility in writing (or repeat circumstances) needs to be shown.

Best bet is, first time it happens, ask for the extra clause in your order. You can have that without it being a shared care order (I think! Need to check on that).
 
Regardless of whether it's a shared care order or not - if it's a defined order (ie with set holiday weeks for each parent) she can't really withold her permission because those holiday weeks are court ordered. But if she did then yes you would still need to apply for a specific issues order.
 
Ash said:
Regardless of whether it's a shared care order or not - if it's a defined order (ie with set holiday weeks for each parent) she can't really withold her permission because those holiday weeks are court ordered. But if she did then yes you would still need to apply for a specific issues order.
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I suspect that, even if holiday periods were defined (e.g. “3 weeks in school summer holidays”, that sort of thing), she would refuse permission to travel with our child abroad. As it’s kind of a separate thing really. One is a defined period where she is obliged to allow her child to spend time with father, the other is a trip abroad that she is allowed to allow/refuse.

On the splits between time spent between households: midweek visits aren’t possible due to distance so 33%, inclusive of 7 weeks of ‘holiday periods’ in a year, is the most I could presently ask for.

On the topic of removal from jurisdiction of England and Wales: I’ve read conflicting things. The text below suggests that I’d need permission. But then I’ve read elsewhere that both the Children Act and Child Abduction Act only apply to removal of a child from the UK.

“It is not the criminal offence of abduction to remove a child to Scotland, Wales or Northern Ireland. However, the consent of a person with Parental Responsibility is required to remove a child, even temporarily, from the jurisdiction of England and Wales. It is a criminal offence to remove a child to the Channel Islands or Isle of Man without the appropriate consent.”

That’s good that you can reclaim costs on a Specific Issues Order hearing

Edit: I’ve just read the wording of each of the above Acts and they both only refer to removal of a child from the UK. So taking a child to Scotland or N. Ireland is fine I assume
 
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Well you can ask for the costs but not necessarily get them! So yes a shared care order would be better so you don't need to seek her consent.

Three weeks each in summer isn't defined exactly. If it said "the first three weeks of the summer holiday with Father" then that is defined time that she has to allow child to be with you or be in breach. But yes it's a pain needing her consent to let you take child abroad on holiday - this is partly why I only had Uk holidays for years until I had an order. But even then she still tried to prevent them! When technically if you had a uk holiday in those three weeks she shouldn't be involved. It's courtesy to let the other parent know you'll be away and provide an emergency contact number but that's it.

But yes this is one area where shared care/lives with is better - neither need consent from the other. Even with a shared care order my ex still tried to prevent it by booking something else the same week and encouraging my son to "choose" her plans. That was way out of line and the court needed to see what was happening - she wasn't respecting the order - or my son's time with me.

How far is the distance? Assume you could do every other week-end? Or could you do three week-ends out of four and have a skype call during the fourth week?

There are shared care orders that give more time in the holidays to the parent who lives at a distance, but this would be a bit unusual for a first application. I've heard of it when there has been a shared care order existing and the mother has then moved away.

When they talk about a third of the time it's usually referring to the care time, not the holidays. So every other week-end would only be 2 nights a fortnight. If you had three week-ends out of four it would be three nights a fortnight - which is still not a third.

You can but ask. So you could say you want a shared care order with three week-ends out of four in term time, and more than half the school holidays. Say all the half terms with you and the rest of the holidays split between you.

But if they decide it will just be a standard "spends time with" order - eg EOW and half the holidays, you can ask specifically for the court to order that either parent may take the children on holiday abroad without needing the consent of the other, as there are no welfare issues and on the basis both will provide details of where they are going and provide emergency details.
 
Distance is over an hour each way. 3 nights a fortnight is definitely do-able (Thurs evening to Sunday evening say), plus 7 weeks a year. Tbh I didn’t know that asking for 3 weekends a month was possible.

It seems strange to talk about school holidays as my child is a few years off that yet. It doesn't seem right that the holiday periods aren’t considered when adding up the ‘time spent with’ ratio.

When suggesting a schedule for holidays, would it be best to align them with the school holidays anyway? Even though it’s a few years until school begins? Like 2 weeks in august, 2 at Easter, 2 at Xmas, one in October half-term?

As things stand I couldn’t ask for more holiday weeks as I’m too far away to shuttle to and from nursery. And I only have so much annual leave! I’ll move closer one day though.

NB - a Thursday to Sunday schedule obviously wouldn’t work when school commences, where distances are so great. Like, I couldn’t do a school run on a Friday morning considering the journey time. By the time school begins in a few years though I’ll live closer hopefully, so that problem would solve itself. Presumably there’d be no conflict with my child not attending nursery or pre-school every other friday (it’s not like it’s compulsory education, or that a child does things in nursery that can’t be done at home)
 
Can you remind me how old your child is?

So - holidays and week-ends are "quality time" and split 50/50. Which is why every other week-end and half the holidays is standard.
Midweek term time is "care time".

When a child is at nursery pre-school age it's a bit different. It's usually an all year round schedule with just a couple of weeks holiday each maybe - I don't know what your child's nursery schedule is, but my son's nursery was open all year round - there were no actual holiday periods except a few days over Christmas.

It sounds like what you need is a progressing order which you can ask for. Say - x schedule while child is in nursery and x schedule once they start school aged four.

An hour is tricky. It's ok for longer periods, but it's too far for an overnight to and from nursery for example. I think they set the travelling time at no more than 45 minutes to and from school or nursery.

So if you did Thursday from nursery to Sunday pm every other week, is that what you mean? (So child isn't in nursery on Fridays). I would think the distance would be ok when it's just from nursery for a few days rather than back again the next morning.

If your child is very young then the distance is a bit of an issue. Any way you could move a bit closer?
 
It is not common to order three week-ends out of four (due to equal split of quality time), unless both parties agree, but you could push for it as shared care, and it has been known. You'd need a good argument.
 
Yeah so the quality time, would always be split evenly in my proposal.

My child is 18 months but will be 2 by the time the court process ends.

I was thinking that when school begins an attempt can be made at mediating a new agreement and if that fails then vary the order. There are a lot of unknowns between now and 3 years time.

Nursery schedule is all year round yeah. But that shouldn’t prevent child taking weeks off nursery should it? It’s not like my child has to attend nursery all the time. I’d still prefer 7 weeks a year, with me, spread throughout the year, whether my child is in nursery, pre-school, school, or none of the above. I hope that can still happen. Obviously the week-long periods with me couldn’t start straight away, there has to be a gradual build up to the “every other weekend” arrangement first, and then a week-long holiday. And then finally 2 week periods.
 
Ash said:
Can you remind me how old your child is?

So - holidays and week-ends are "quality time" and split 50/50. Which is why every other week-end and half the holidays is standard.
Midweek term time is "care time".

When a child is at nursery pre-school age it's a bit different. It's usually an all year round schedule with just a couple of weeks holiday each maybe - I don't know what your child's nursery schedule is, but my son's nursery was open all year round - there were no actual holiday periods except a few days over Christmas.

It sounds like what you need is a progressing order which you can ask for. Say - x schedule while child is in nursery and x schedule once they start school aged four.

An hour is tricky. It's ok for longer periods, but it's too far for an overnight to and from nursery for example. I think they set the travelling time at no more than 45 minutes to and from school or nursery.

So if you did Thursday from nursery to Sunday pm every other week, is that what you mean? (So child isn't in nursery on Fridays). I would think the distance would be ok when it's just from nursery for a few days rather than back again the next morning.

If your child is very young then the distance is a bit of an issue. Any way you could move a bit closer?
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Sorry I missed your last two paragraphs!

Yes that’s exactly what I mean.

And yes I can move closer, it’s a medium-term plan, it may not be for a couple of years time though due to a few other factors. Ideally it would be to within 20-30 minutes drive of his current home. I presume at that sort of distance mid-week pick-ups and drop-offs are possible.
 
I think the difficulty with distance is being able to see your child regularly without too many long gaps. I did used to do a 40 minute journey when my son was in nursery and he didn't take to it well at first - mainly because he used to journeys with me only being about 15 minutes but my ex moved. He cried a lot. Had to have a few stops. He got used to it fairly quickly but I got in the habit of breaking the journey half way to stop at playpark for a while or go somewhere to have a snack. That worked well. You need to think up something that's going to work. It's too far to have a midweek overnight - but you could have two consecutive midweek nights - depends on your work. As you say - he doesn't have to be in nursery.

So Ideally it would be something like:

Week 1: Tuesday tea time, then Thursday afternoon/night to Sunday pm
Week 2: Wednesday night through to Friday night

If you have the tea time visit there's no travelling and it breaks the week's gap between the Friday and the following Thursday. But presumably you'll be working midweek?

The main thing is the weekly schedule - and then decide on holidays. I think at that age it would maybe be a few days at first, then leading up to a week at a time and then maybe 10 days. Maybe not two weeks till age 4 and at school. Two weeks is the maximum they think a child should be away from either parent anyway.
 
The above would be five nights a fortnight plus a teatime. Which could be shared care. A week's gap with a younger child means they don't adapt to the schedule too well and your ex will probably use that argument. I think they need to see both parents regularly to feel secure.

I did do single overnights with a 40 minute journey but they need entertainment! And a break. I did the journey with my partner and she had to read or play things with him to keep him occupied. Once he got used to it he was fine just chatting to me and singing songs etc.
 
Ash said:
I think the difficulty with distance is being able to see your child regularly without too many long gaps. I did used to do a 40 minute journey when my son was in nursery and he didn't take to it well at first - mainly because he used to journeys with me only being about 15 minutes but my ex moved. He cried a lot. Had to have a few stops. He got used to it fairly quickly but I got in the habit of breaking the journey half way to stop at playpark for a while or go somewhere to have a snack. That worked well. You need to think up something that's going to work. It's too far to have a midweek overnight - but you could have two consecutive midweek nights - depends on your work. As you say - he doesn't have to be in nursery.

So Ideally it would be something like:

Week 1: Tuesday tea time, then Thursday afternoon/night to Sunday pm
Week 2: Wednesday night through to Friday night

If you have the tea time visit there's no travelling and it breaks the week's gap between the Friday and the following Thursday. But presumably you'll be working midweek?
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I’m working midweek yes. Taking every other Friday off work is agreed with work and achievable. Taking an additional afternoon off work isn’t really. Even if I were to leave work at 4pm, with traffic I’d be getting there shortly before my child’s bedtime. And it would be a 2.5 hour round trip for what would be a brief visit.

If I’m taking every other Friday off work I can’t then take the next Thursday and Friday off work in week 2. Basically I can switch to working 9 full days every fortnight instead of 10 full days every fortnight. But I can’t reduce my hours any more (well I probably can but the mortgage has to be paid!). The alternative would be to pay for a childminder whilst my child is at my home, which defeats the purpose really

I wouldn’t have thought that a journey of 1-1.5 hours would be seen as excessive for a 2 year old. But perhaps it is. I’ve done it before and there were no issues
 
There's some info on schedules for toddlers on the link below. Sounds like ideally for you it would be Thursday to Sunday each week but I doubt your ex would agree to not have any week-ends. Thinking back, my initial schedule when my son was at nursery was every Saturday night to Sunday night plus a midweek overnight. That gave the frequency - split week-ends - it's mentioned below. That might be better.

So you could have maybe Thursday to Sat evening one week and Friday to Sunday evening the following week.

Actually can't see an ideal schedule with the midweek distance. But it's late! Have a think about it.

Toddler Parenting Plans & Custody Schedules: What is Best? (1.5-3 yrs)

Things to consider when making a parenting plan for a toddler (18 months to 3 years) and examples of custody schedules that work for toddlers.
www.custodyxchange.com www.custodyxchange.com
 
Ok you could do split week-ends weekly Thursday night to Saturday night with you each week. Saturday night and Sunday with your ex.

That would be 4 nights a fortnight. You'd only see your child weekly but it would be a regular routine with part midweek and part week-end.

It's something that would be acceptable to a court I reckon.

It's better to have a progressing order to include school = or you'll have to go through the whole court process again (and it shows you're planning ahead).

50/50 for that would be two consecutive nights midweek and every other week-end through to Monday morning. Or week on week off. Not sure they'd do week on week off for a four year old though. So you could have the order worded to say you will be living closer by the time child starts school and go for 2-2-5-5 (eg every wed and thurs night and every other week-end).
 
If living closer, midweek overnights are easier - after school clubs and pick up after work. Two years goes quickly ;)
 
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