Respondent Mother has closed the case and the court have allowed her to! Urgent help needed.

[TheDetective]

My partner received an email today from court. The wording is "upon the respondent mother contacting the court to inform the application concluded on 11th July 2022 it is ordered that the hearing on 17th October 2022 is vacated.

This has come as a big shock! They were due in court on Monday! History is my partner made a SIO application back in June when mum wouldn't supply passport for agreed holiday and wouldn't agree to handover and drop off dates and times at a reasonable time (I've a thread about it on here). The SIO was dealt with, but a further hearing ordered so holiday contact/passport could be discussed further as there remains issues, eg she won't agree to dates until the last minute (summer hols dates only confirmed the day before court 10th july). She doesn't want to as "she doesn't know what her plans are yet". Holidays are 5050 split. She constantly has the greater share of the hols and it is pretty much her way or the highway. My partner wants a more prescriptive order particularly for the summer and Easter holidays when the biggest issues arise.

So she asked him on Tuesday did they really need to go to court again as far as she was concerned there were no issues. He said there were issues so yes, need to go back.

She's only gone and bloody contacted them and had it cancelled. It was his application, how can she do that? He has spoken to the clerk at lunch time who said "no, it must be a mistake, they wouldn't do that". She checked and said "I stand corrected, they have done it, I can't believe that has happened, email the court urgently now".

So he did. And guess what? No response. So he called again late afternoon. They said they would forward his email to the judge but won't be looked at til Monday at the earliest. Apparently urgent just means 1-2 days for a response time.

So... what happens now? Surely they can not just close the case without his consent? My partner has taken unpaid leave plus the legal costs for what.... nothing! It's a bloody joke. Has this happened to anyone else? We had hoped to get Christmas holidays sorted (we want to make arrangements to see family!). Now that isn't going to happen. It is half term next week and that hasn't even been addressed by the mother let alone agreed upon!

 

[Ash]

I have never heard of the Mother being able to cancel a case. I've heard of her being able to get it adjourned. The only thing I can think is that she got a lawyer to write something to the court saying matters had been agreed and no further hearing necessary or something. A sort of tricksy lawyer thing where they say - holidays are over now, passport was handed over - no need for a further hearing.

It could be a mess up. Technically things were concluded in July over the passport and holiday. So no need for a further specific issues hearing. It would need to be a variation hearing. Did he apply to vary as well as for specific issues?

It's too late to email the court again if the hearing was supposed to be on Monday. Can he cancel his lawyer and say it's not happening - he shouldn't have to pay if it's been cancelled or they can defer by keeping the payment until his next hearing.

If he didn't apply to vary as well as for SIO then it might need a further application to vary to sort the rest out.

But really never heard of such a thing. How the heck did she manage it.

 

[TheDetective]

I'll need to get out the original paperwork, he did just apply for an SIO but also that it needed resolving for future holidays hence why I assume the date was given for a hearing on Monday.
She is unrepresented, and highly unlikely to have got a solicitor to write a letter. Of course it isn't impossible, but knowing the case I'd say unlikely.

No idea until Monday regarding his representation/costs. Will find that out then I guess?!!

No, I've no idea how she managed it. The clerk was shocked to say the least. She's a slippery little fucker. When she spoke to my partner on Tuesday night to ask if they really needed to go back to court, she'd already bloody contacted them and done this!

 

[Resolute]

Just a thought: vacated does not mean cancelled.

I had a hearing vacated as a result of shenanigans by the other side. It was a pain as I lost advantage, but the hearing was rescheduled.

"Vacated" relates to the date and time, not to the process. I believe the application would be "dismissed" if there were nothing left to do.

 

[proud_dad]

"Vacated Trial - A vacated trial is a trial that has been given a date for trial whether at a preliminary hearing or Plea and Case Management Hearing (PCMH) or by inclusion in a window for trial, and is taken out of the list (stood out of the list) before the date of trial. Prior to the date set for trial, the Prosecution, the Defence or the Court makes an application to vacate the trial. The application is accepted and approved on behalf of the court (Bench/Judge) and the trial is taken out of the list. All parties are notified and witnesses and defendants are de-warned. The listing officer then records the reason for vacation on the vacated trial monitoring form. A further listing for the vacated trial may be required and the court time made available may or may not be used to hear another case."

https://www.judiciary.uk/wp-content/uploads/2010/04/cit_guidance_v3_1007.pdf

 

[Ash]

Good points above. On the other hand if it was just going to be rescheduled, I'd have thought it would say the case had been adjourned rather than vacated. To be honest I am not familiar with what "vacated" means exactly in this situation, but it is certainly not happening is it?!

Don't wait till Monday to contact his lawyer - do it now - to avoid being charged. Some of them do work on Saturdays.

 

[Ash]

Some info here

Vacated - When a hearing is cancelled or not effective, this can be either by the consent of both of the parties or the court. In cases involving children, hearings are often vacated as the parties have been able to reach an agreement outside of court.

So it seems his ex has told the court agreement has been reached - and they've cancelled it without hearing from both parents - presumably because she did it so close to the hearing. That is pretty outrageous!

I'm going to add this link to resources as well as there's some useful terminology listed

Family Law - The Five Minute Jargon Buster

Using legal terms is often unavoidable, so in order to make legal proceedings more understandable, we have compiled a useful glossary. Read more here.

www.howellslegal.co.uk

 

[Ash]

I think the only options now are to write to the court asking for the hearing to be rescheduled and stating that there had been no agreement between parents that the issues were resolved and you were surprised to hear the hearing had been vacated, after taking unpaid leave and booking a lawyer for the hearing date. And at the same time submit a C100 for variation and set out everything you want specified in the order with defined dates. I think that's the only way you're going to get this holiday issue sorted. You need set holiday weeks annually (which can of course be swapped between parents PROVIDING both parents agree in writing. If no agreement then it's a breach if not followed).

You want something like:

First half of school summer holidays with Father in 2023 and odd years and with Mother in 2024 and even years
Second half of school summer holidays with Mother in 2023 and odd years and with Father in 2024 and even years

All school holidays to commence at the time the school day ends on the last day of term, and to end at the time the school day starts on the first day of the next term. (To make sure there are no arguments as to when holidays start and end and term-time schedule is over).

And do the same for the other holiday weeks if they're not defined.

So it's absolutely crystal clear. You will always have a line that says "such further and other times as agreed between the parties in writing". If you haven't then that needs adding. That means you can agree reasonable flexible adjustments between you here and there, providing both parents agree in writing (eg email or text) so the order is still valid.

It really needs to be a variation case because you're talking about all holiday date issues generally.

The good thing is, that as you've had to write for an existing hearing that's been vacated to be rescheduled, the chances are that you'll get an earlier first hearing for a variation hearing. It will mean the whole Cafcass involvement thing again though.

The advantage of applying to vary now is you have plenty of evidence of her being unreasonable so good reason to apply to vary. I had to do the same thing a year after my first court order.

You need a defined order with all dates set out to the letter - time, date etc. That she has to follow. Of course that doesn't stop her breaching an order and you having to enforce again. But I think if she did that you'd be wanting to ask for a suspended residence clause. ie if she breaches again then residency is given to the Father and it's spends time with, with the Mother.

What is the current order? Is it lives with Mother, spends time with Father? Or is it shared care? If it isn't shared care then ask for that as part of variation as well. If something is "taken away" from her then she might stop messing about with orders if she loses out each time.

 

[Resolute]

Just a thought: vacated does not mean cancelled.

I had a hearing vacated as a result of shenanigans by the other side. It was a pain as I lost advantage, but the hearing was rescheduled.

"Vacated" relates to the date and time, not to the process. I believe the application would be "dismissed" if there were nothing left to do.

I have read stuff on here and on various sites, it looks like vacated has multiple meanings. Sorry, I was not aware it can also mean the case comes to an end.

 

[Ash]

It's a pretty useless term isn't it? That Jargon Buster article is helpful

 

[Resolute]

It is helpful to a degree, but not the full picture. A hearing can be vacated and relisted for very mundane reasons that are nothing to do with the case itself: illness, lack of judge/magistrates, emergency child protection hearing taking precedence... Jargon buster doesn't really capture this side.