Make a C79 Enforcement Application or not? Stick or Twist?

[mikeayo1891]

My story is quite long but I won’t bore you with the details. Got a 6-year-old boy (7yo in a month) with an ex withholding my child for the last one year. Being through all the usual false allegations. Despite my arguments against a fact-finding hearing, my attempts were futile. At a DH in Dec last year, a FFH was ordered for November this year. However before that, a Pre-trial hearing took place this February where a miracle happened. I managed to strike a rapport with the ex’s legally aided barrister and by some miracle the barrister was able to convince the ex to prioritise child’s best interest. I got speaking with ex and she got in her feelings, started to flirt with me (saying she missed me and all) and we managed to strike an interim mutual agreement where she greed for me to make weekly 30min video call with son for one month and then for me to meet with him once a week (every Saturday). We also agreed that there was now no need for a FFH. The judge was glad and made an interim consent order based on our mutual agreement. The judge cancelled the upcoming FFH (previously scheduled for Dec) and ordered a Review Hearing for August to gauge progress where she will decide what next. Either a Section 7 or a Final Hearing. The judge also reserved case to herself. I couldn’t believe my luck but I knew that the ex couldn’t be trusted and only needed to get off her high before her getting back to her usual ways. Well, it didn’t take long.

First time I made a video call to speak with my son, my boy was screaming and yelling loudly that he doesn’t want to see or speak with me. I couldn’t believe what I was seeing from a boy that I always had a such great relationship with until she stopped me seeing him a year ago. 6yo son keeps yelling and screaming when I try to talk to him. Obviously, the ex has done a number on him and he’s been completely alienated. Now as per our court order, I asked the ex to allow me meet with my son. The plan is to come bearing lots of gifts, to take him to out and have a deep but child friendly chat with him. I’m very confident that I can win him back if I have an audience with him. Problem is that the ex has repeatedly prevented this from happening saying she wants my son to undergo counselling with the GP before she sees me. The court order did not order for a counselling and I know this is another delay tactic but she has stuck with her guns despite all my attempts. So its been almost 3 months since our last court hearing and I still haven't seen my son despite court order.

Now I need some advice. My aim is to get to a final hearing as soon as possible having an advantage. Do you think it makes sense for me to make a C79 enforcement application right now (likely to be a new judge) for ex to respect interim court order or simply wait for my Review Hearing scheduled for August with the same judge where I can explain everything? @Resolute @Ash

 

[mikeayo1891]

My story is quite long but I won’t bore you with the details. Got a 6-year-old boy (7yo in a month) with an ex withholding my child for the last one year. Being through all the usual false allegations. Despite my arguments against a fact-finding hearing, my attempts were futile. At a DH in Dec last year, a FFH was ordered for November this year. However before that, a Pre-trial hearing took place this February where a miracle happened. I managed to strike a rapport with the ex’s legally aided barrister and by some miracle the barrister was able to convince the ex to prioritise child’s best interest. I got speaking with ex and she got in her feelings, started to flirt with me (saying she missed me and all) and we managed to strike an interim mutual agreement where she greed for me to make weekly 30min video call with son for one month and then for me to meet with him once a week (every Saturday). We also agreed that there was now no need for a FFH. The judge was glad and made an interim consent order based on our mutual agreement. The judge cancelled the upcoming FFH (previously scheduled for Dec) and ordered a Review Hearing for August to gauge progress where she will decide what next. Either a Section 7 or a Final Hearing. The judge also reserved case to herself. I couldn’t believe my luck but I knew that the ex couldn’t be trusted and only needed to get off her high before her getting back to her usual ways. Well, it didn’t take long.

First time I made a video call to speak with my son, my boy was screaming and yelling loudly that he doesn’t want to see or speak with me. I couldn’t believe what I was seeing from a boy that I always had a such great relationship with until she stopped me seeing him a year ago. 6yo son keeps yelling and screaming when I try to talk to him. Obviously, the ex has done a number on him and he’s been completely alienated. Now as per our court order, I asked the ex to allow me meet with my son. The plan is to come bearing lots of gifts, to take him to out and have a deep but child friendly chat with him. I’m very confident that I can win him back if I have an audience with him. Problem is that the ex has repeatedly prevented this from happening saying she wants my son to undergo counselling with the GP before she sees me. The court order did not order for a counselling and I know this is another delay tactic but she has stuck with her guns despite all my attempts. So its been almost 3 months since our last court hearing and I still haven't seen my son despite court order.

Now I need some advice. My aim is to get to a final hearing as soon as possible having an advantage. Do you think it makes sense for me to make a C79 enforcement application right now (likely to be a new judge) for ex to respect interim court order or simply wait for my Review Hearing scheduled for August with the same judge where I can explain everything? @Resolute @Ash

@MagicJ

 

[Pj66]

I'm not too experience on this but looking at the situation, it seems your ex is looking to do anything and everything to drag things out and cause delay, and as @Ash would say, "delay is the enemy"

She may have been buttering you up and working with her barrister to be all nicey pricey as a) she probably wanted to avoid the fact find as she may loose b) an agreement by consent benefits her as it puts you in a more difficult position to change it - thus putting you in a position where it's hard not to agree to it as you want to see your kids.

If the judge has dismissed the fact finding hearing, I think this would benefit you massively, the ex can no longer bring up the issues she was accusing you of, and if you enforce the interim based on her not adhering to it, it makes her look bad and you are in a more advantageous position for a final hearing.

Il let someone else jump in on this but I think it ash mentioned he had to apply for an emergency enforcement / variation.

I'd be inclined to think to not give an inch and enforce the interim rather than wait it out , it seems she's got something not so nice planned with discussion of GP counselling, perhaps coaching for the final hearing. Not sure whether the change of judge could be of benefit or not.

 

[MagicJ]

This is a difficult situation @mikeayo1891 , @Pj66 makes some good points though I have no experience of enforcements.

What stands out is 3m to a Review hearing but there's nothing to review except 1 phone call!

 

[mikeayo1891]

Thanks @Pj66 . I am inclined to applying for an enforcement hearing, just concerned that her excuse will be that the boy genuinely doesn't want to see me and that she has done her best and cant force him to see me or talk with me. He's a just 6yo but will be 7 next month. She will argue that she is trying to get him counselling from the GP to ensure that he is in a good mental state to see me. I dunno if that will wash with the judge.

@MagicJ Its not just 1 phone call. I've made at least 4 to 5 phone video calls and its the same thing, The boy keeps yelling and screaming and running away from the phone. Dunno what she's done to turn him against me. I have asked to see him physically but ex has refused to let that happen despite it being part of the court order that I see him physically every Saturday. I believe I will manage to get through to him with if i get to see and talk to him physically and the ex is deliberately preventing that. Dunno if it serves me better in the long run to do a c79 right now just to have something against her or just wait it out till the Review Hearing in August.

 

[Ash]

What does the interim order actually say? It might not be possible to enforce but you could request an urgent directions hearing. Other options would be to also submit a part 25 application for an ISW report.

 

[Ash]

That would cost money btw - an isw report. But it would be a lot quicker than waiting till August and a S7 being ordered. Usw’s turn things around quickly and would highlight alienation.

 

[mikeayo1891]

What does the interim order actually say? It might not be possible to enforce but you could request an urgent directions hearing. Other options would be to also submit a part 25 application for an ISW report.

Thanks @Ash

Here is what the interim court order says:


@Ash Why do you believe that it might not be possible to enforce? Do you think an urgent directions hearing will be more effective? Could you kindly explain why?

 

[Ash]

Thanks - I’ve removed the detail as it’s directly from the order but I’ve read it. It does state very clearly that the phone calls must happen and direct “contact” is to start by a month. And no fact find.

Is all that under “It is ordered “ or “It is agreed?” Sometimes it’s not actually ordered but is recitals to say what has been agreed.

It might still be enforceable if they are recitals but not as easy to enforce as if it is ordered. Or might need a different type of application than a C79 if it’s recitals.

This is based on legal advice I had on my first order - which wasn’t enforceable due to the arrangements not being ordered but in recitals.

 

[Ash]

Considering that your son sounds to have been alienated and is rejecting you and your ex is not keeping to the agreement (and I’m guessing it was recitals due to it being agreed at court) you definitely need to do something to protect your child from this awful alienation. Obviously it’s not normal for a child to scream during a phone call.

I’ll wait to hear if it was ordered by the court or a record of what was agreed. Really sorry your son is going through this.

 

[Ash]

Ok. Further to our PM - the order is most definitely enforceable! It is not an interim order - it's a final order by consent. Giving the Mother a "lives with order" and stipulating clearly the arrangements for your child's time with you. The review hearing later is presumably just to see how things are going or to give opportunity to change arrangements possibly. But what you have is a consent order, not an interim order.

So yes I would submit a C79 for enforcement. You could request a Section 7 is ordered in that application, however that will take some time and meanwhile your child is being alienated, so you would need to try and get something done at the enforcement hearing to ensure the current order is followed. If you could scrape the money together for an ISW report it is more likely to be much quicker and also determine alienation, as, frankly, I wouldn't rely on Cafcass to do that in a Section 7.

I'm happy to help with the C79 wording. For the order to have been breached, however, it has to be a clear breach with no reasonable excuse and your ex will no doubt say she has not breached the order for phone calls because she has been allowing them - even if your son is screaming during the phone calls, so that could be hard to prove as a breach. I assume the direct time has been breached as it hasn't started.

Another option would be to submit a C100 for variation of the current order, requesting more time and highlighting what is happening with the child. Normally you would apply to vary if the order isn't enforceable, and while yours is enforceable, you need to prove the breaches with "no reasonable excuse". No doubt your ex will say your son is refusing to see you.

You would get a quicker hearing with a C79 however.

 

[mikeayo1891]

Thank you very much for your response @Ash . Very relieved to know that my order is potentially enforceable with a c79. I am however concerned that you have referred to it as a "final order" by consent because we didnt intend it to be "final". This was just supposed to be a sort of stop gap agreement until a final child arrangement order is made hopefully after a final hearing. The review hearing scheduled for August was to check progress so the judge can decide if we should go straight to a final hearing or order a S7.

Here are my questions:

1. How quickly do you think i'm likely to get a c79 hearing bearing in mind that the Review Hearing is in August - 3 months time?

2. Do you think her excuse (that the child genuinely doesnt want to see me and that she is trying to get him GP counselling) for the breach in physical contact is likely to be seen as reasonable by a judge?

3. Between a c79 and a c2 application, which one do you think is most appropriate for my situation and/or which one is likely to be quicker to be heard before the August review date?

4. Unfortunately I am unable to afford the 2 to 3grand for an ISW so it will have to be a s7 from cafcass. I am hoping that a judge ordering for s7 report right away will cut me some months instead of waiting till August. What do u think? How can i get the best out of this situation?

5. Considering the fact that ex has already moved almost 4 hours away from London, do you think even if an ISW says there's been alienation that it will have any serious effect on the final order? I understand that mothers get 50% as default no matter what. I am resigned to the fact that i am very unlikely to get 50/50 because of the distance. I will be satisfied with most of the holidays and maybe 2 long weekend a month during term time. Dunno if that makes sense.

 

[Pj66]

Were you represented? If not, her barrister has pulled some dirty tricks on that order and made it a final order instead of what you thought was interim, if this is not what you want as a final than you have no choice but to vary I assume and explain the situation to the judge.

 

[mikeayo1891]

Were you represented? If not, her barrister has pulled some dirty tricks on that order and made it a final order instead of what you thought was interim, if this is not what you want as a final than you have no choice but to vary I assume and explain the situation to the judge.

I wasnt represented. But i really dont think her barrister was playing any games. Because without her barrister i'd have still been stuck with a FFH. Her barrister was so nice and helped me a lot. In fact 2 days after the hearing the ex tried to renege on our agreement having realised that she might have let me off the hook by agreeing to contact and cancelling FFH but the barrister stood her ground. She gave me a personal story of her also having a 7yo and how she has tried to work things out with her dad.

Anyway it was clearly understood by everyone especially the judge that this was supposed to be interim. And thats why a review hearing was ordered in the first place. In fact the barrister suggested to the judge to fix the review hearing for August just ahead of the new school term so that any subsequent final order will take account of the new school term. The judge specifically stated that based on how smoothly things progress, she will decide on whether we need a s7 or go straight to final hearing. And she then reserved the case to herself. So its clear that she knew that it wasnt final. A weekly 7 hour round trip to spend time with child every Saturday surely does not make sense as a final order where no welfare issue has been proven. But maybe the wordings of the order was drafted wrongly by mistake by the court.

 

[bujanin]

1. How quickly do you think i'm likely to get a c79 hearing bearing in mind that the Review Hearing is in August - 3 months time?

My cheque payment for a C79 was banked two weeks ago but I haven't had any comms from the court about a date yet. I think that the whole system is slow.

 

[mikeayo1891]

My cheque payment for a C79 was banked two weeks ago but I haven't had any comms from the court about a date yet. I think that the whole system is slow.

Thats a big concern for me. Money is tight for me at the moment. As much as am happy to pay and apply for a c79 i'd be upset if i dont get a date until another 2 or 3 months when i know that i already have my Review Hearing coming up in August. Not sure if a c2 application for an urgent directions hearing will do a similar job but with a much earlier date. Anyone done a c2 application recently? How long did it take to get a date?

 

[Pj66]

"the ex tried to renege on our agreement having realised that she might have let me off the hook by agreeing to contact and cancelling FFH but the barrister stood her ground"


She did not have her day in court, she was disappointed she didn't have her chance to "get you". This is her cognitive dissonance talking, she wanted her cake and to eat it too, and she didn't get it. Her barrister told her that she might likely actually loose a FFH, as you already know these women don't care about the impact of their actions, they just want to hurt you and do not care about hurting the child.

So now she's reneging on the order and further alienating to "get you", these women just can't let it go and it's actually rather funny if you think about it, that's how infantile it is.



"Anyway it was clearly understood by everyone especially the judge that this was supposed to be interim."

Clearly not her barrister who helped draft the order .


"And thats why a review hearing was ordered in the first place. In fact the barrister suggested to the judge to fix the review hearing for August just ahead of the new school term so that any subsequent final order will take account of the new school term."


Brilliant move, push the hearing as close to school term as possible so the original order sticks and more difficult to change because kiddo is already ready for school.


"And she then reserved the case to herself. So it's clear that she knew that it wasnt final."

Clearly not , as ash said after looking at the order, "the order is most definitely enforceable! It is not an interim order - it's a final order by consent. Giving the Mother a "lives with order" and stipulating clearly the arrangements for your child's time with you"

I would believe him.



Same judge will now just likely review the order and see how everything is getting on, the exes barrister who now has put you in a situation that's difficult to escape, on one hand you can enforce it but less likely the order will change, on the other hand , if you now understand it's a final order by consent and are not happy with that, you will have to vary the order which may very well take proceedings into the school period, which the gives the exes barrister the best argument ever for sticking to the order and then claim "well judge he agreed to it"


"But maybe the wordings of the order was drafted wrongly by mistake by the court."

This wasn't a harmless mistake and unintentional, this is why you always have a legal advisor when drafting a legal document.


"Her barrister was so nice and helped me a lot" "She gave me a personal story of her also having a 7yo and how she has tried to work things out with her dad."

That's the barrister buttering you up to get the best outcome for their client. She probably forgot to mention the part where she's also alienating her kids dad too.

Rule 1: never take legal advice from the opposition. This is why you should have your own barrister/solicitor.

 

[Ash]

Clearly not , as ash said after looking at the order, "the order is most definitely enforceable! It is not an interim order - it's a final order by consent. Giving the Mother a "lives with order" and stipulating clearly the arrangements for your child's time with you"

I would believe him.

It appeared like a final order to me. It's a consent order, approved by the court. I may be wrong about it being a final order because the one thing it didn't say was "this is a final order". What it is though, is a Child Arrangements order by consent that says the child lives with the Mother and the arrangements for you - which are minimal. It does mention a review but that's a bit vague.

It does suggest that they were just going to see how things were going by the next hearing. I don't think it can be an interim order though because it gives the ex residency (by consent, so you agreed to that).

The positive is - any allegations your ex may have made previously are now dismissed, because she agreed to a consent order. But she isn't following it. Or she is following it for phone calls but frustrating it by making your son behave a certain way.

I am still thinking about whether it would be best to enforce it or apply to vary it. I'm inclined to think applying to vary would be better. Because enforcing it is just enforcing the current minimal order (which might be a final order and a token "review" to see how things are going).

Whereas applying to vary enables you to ask for a progressing order leading to more time and you'd have good reason to ask for more time, because the ex is frustrating the current order. (The idea behind giving Dad more time if the Mother frustrates orders or breaches them, is to take something away from her, to deter her from breaching orders again).

It does say it's a Child Arrangements Order and a lives with order for the Mother., There is also a glaring "typo" where it should say the father will spend such further time with the parties as agreed between the parties. (that first "parties" should say child!). That can be amended under the slip rule if you raise it.

It refers to possible prohibited steps and other things being considered at the review hearing. And it does say a bundle is to be prepared for the next hearing but it's only a 1 hour hearing.

It says the review hearing is to monitor the progression of contact (ie to see if your ex is following the order and if things have been going ok) and to determine whether prohibited steps, specific issues and Section 7 are needed.

That is vague and woolly. As PJ says it was written up by your ex's barrister and in her interests.

As you say - you want a section 7 now - why delay it. But why have one when there's already a child arrangements order.

I'll be honest, I don't think a section 7 in 3 months time (which could take another 6 months) is going to help. It's more likely to say child is fine with Mother - and by then you won't have seen child for a long time and it could become intractible.

I'm still trying to think about whether it's better to enforce or apply to vary. I'm not sure now whether applying to vary would work if there's a hearing in August - they might just delay a variation hearing till August. Whereas enforcement is quicker and you might get to see your child sooner.

 

[Pj66]

Urgent c2 based on that typo "the father will spend such further time with the parties as agreed between the parties"?

Claim this is why you believe the mother is preventing access and then ask to vary at that directions for a more robust order?

I might be completely way off here on how it works, but wondering if there was somehow you could get it enforced as an interim pending variation for the August hearing. Claim the glaring typo as the urgency?

 

[mikeayo1891]

It appeared like a final order to me. It's a consent order, approved by the court. I may be wrong about it being a final order because the one thing it didn't say was "this is a final order". What it is though, is a Child Arrangements order by consent that says the child lives with the Mother and the arrangements for you - which are minimal. It does mention a review but that's a bit vague.

It does suggest that they were just going to see how things were going by the next hearing. I don't think it can be an interim order though because it gives the ex residency (by consent, so you agreed to that).

The positive is - any allegations your ex may have made previously are now dismissed, because she agreed to a consent order. But she isn't following it. Or she is following it for phone calls but frustrating it by making your son behave a certain way.

I am still thinking about whether it would be best to enforce it or apply to vary it. I'm inclined to think applying to vary would be better. Because enforcing it is just enforcing the current minimal order (which might be a final order and a token "review" to see how things are going).

Whereas applying to vary enables you to ask for a progressing order leading to more time and you'd have good reason to ask for more time, because the ex is frustrating the current order. (The idea behind giving Dad more time if the Mother frustrates orders or breaches them, is to take something away from her, to deter her from breaching orders again).

It does say it's a Child Arrangements Order and a lives with order for the Mother., There is also a glaring "typo" where it should say the father will spend such further time with the parties as agreed between the parties. (that first "parties" should say child!). That can be amended under the slip rule if you raise it.

It refers to possible prohibited steps and other things being considered at the review hearing. And it does say a bundle is to be prepared for the next hearing but it's only a 1 hour hearing.

It says the review hearing is to monitor the progression of contact (ie to see if your ex is following the order and if things have been going ok) and to determine whether prohibited steps, specific issues and Section 7 are needed.

That is vague and woolly. As PJ says it was written up by your ex's barrister and in her interests.

As you say - you want a section 7 now - why delay it. But why have one when there's already a child arrangements order.

I'll be honest, I don't think a section 7 in 3 months time (which could take another 6 months) is going to help. It's more likely to say child is fine with Mother - and by then you won't have seen child for a long time and it could become intractible.

I'm still trying to think about whether it's better to enforce or apply to vary. I'm not sure now whether applying to vary would work if there's a hearing in August - they might just delay a variation hearing till August. Whereas enforcement is quicker and you might get to see your child sooner.

Thanks @Ash . I'm really confused now. I've never seen the look of a final order or interim order so not sure what to compare mine with. I wonder if there is such a thing as an "interim consent order" - that is an interim order agreed by consent. That's what I believed that I have. Even though I agree that the mentioning of the the Review Hearing seems a bit vague in the order, I remember that it wasn't vaguely mentioned at the hearing, it seriously considered. And I wonder why the judge will be considering if a section 7 will be needed at the Review hearing if what I have was meant to be a final order.

In terms of deciding whether to vary or ask for an enforcement, I'm inclined to think that there are 3 options:

1. Asking to vary the order would need a new C100 application and may give the wrong impression that this was indeed a final order which needs varying - even though from my experience of the day strongly suggests that it wasn't meant to be final. This is to me is like unnecessarily starting all over.

2. Asking for an enforcement on the other hand would need a c79 application. This would simply mean trying to enforce what I believe to be an "interim order" ahead of the Review Hearing which holds in August.

3. Making an urgent c2 application for a Directions Hearing for ex to respect interim order. Or can I use an urgent c2 to vary without needing a new C100?

Not sure which is the best and most effective and fastest option of the three in this circumstance bearing in mind the August Hearing.

Also @Ash Are you suggesting that it may not be my interest to push for a section 7 because I have a child arrangement already in place? I also would prefer not to have one. I just don't know if a judge would be happy to progress the case to a final hearing without a section 7 in a case where ex would say child doesn't want to see me.

Please bear in mind that I haven't seen my child in about a year now and from his screaming and yelling on the video call I am 100% sure that he has been completely alienated. I don't think he can get more alienated than he is now, even though I believe I can win him back when I see him. However I don't mind a few extra months of not seeing him if that would lead me to a a final hearing as soon as possible where I can argue to for him to spend some term time and most of the holidays with me.