Variation or enforcement or SIO or all 3?

[BigLes]

Hi All,

A final order has been made. The order doesn’t consider arrangements for school and the order cited the child’s young age as a factor when making the decision. My barrister’s advice was to wait until before school begins to return to court. Given the protracted time taken to go through the court process, and given the requirement to build up time so that a settled living arrangement is in place before school starts (in 20 months’ time), I am minded to return to court earlier than advised. If we return to court in the summer, 1 year will have passed.

The order was breached by mother within 3 months of the final order being made. This related to a medical issue that was the subject of a SIO. It is the second clear breach but the first breach of the final order (the previous breach was a breach of the interim order and related to withholding our child). The final order is a “lives with mother” order. My hope is that the quantum of time will be 50/50 (and a “lives with both” order) before school starts.

The existing final order states that mother must not unreasonably object to holidays abroad with father. Permission has not been given for one such holiday so far (no response was given, just ignoring messages on the parenting app). Mother refuses to communicate on matters such as toilet training etc (there’s a general resistance to co-parenting and positive communication). Another holiday is coming up in the summer, no response from her on that one yet either but I will 100% go to court to ensure that holiday happens. If I do go to court for a Specific Issues Order for the holiday then 1 year will have passed since the final order was made.

So my question is: do I need to submit and enforcement application for the medical-related SIO? Do I need to also submit a variation for a change in child arrangements? And do I need to submit a SIO for the holidays alongside it?
So is that 3 separate applications (that presumably get rolled into one hearing)? If so, does I use the previous court bundle again but just add to it? What forms do I submit?

The other issue is that mother has removed child from nursery for no good reason so now I have to take child into nursery during the 2 days per week that child is in my care. There is disagreement on nursery, if mediation fails (and I’ll of course attempt mediation first), could this be the subject of a (second) SIO? I don’t suppose things like nursery decisions fall under the umbrella of “child arrangements”? Or do they? I know fine well my old solicitor wouldn’t know the answer to this either - clueless.

I’m hopefully going to avoid using a solicitor. They just rinse you dry. Maybe I’ll use a DAB.

I could maybe request that a district judge hears this as magistrates are fairly soft and useless

 

[Resolute]

I would be minded to offer your ex opportunity to nominate dates you can go abroad with your child. As she did not respond to a specific request. It might be hard to show her grounds were unreasonable. It would certainly be unreasonable not to give consent for you to go abroad at a time of her choosing.

For the holiday you want in the summer. I suggest you book tickets and share them with your ex. Ask her to confirm she will hand over passport 4 weeks before travel. This would show that you are in a position to take the matter to court if she really wants to go that way.

In regard to the applications. I'd leave aside the enforcement (C79) in favour of a C100 requesting all of the orders you need. It may be necessary to handle the SIO for summer holiday in a separate urgent application.

As always, I speak only from my experience of similar. Other members may have better ideas.

 

[BigLes]

I would be minded to offer your ex opportunity to nominate dates you can go abroad with your child. As she did not respond to a specific request. It might be hard to show her grounds were unreasonable. It would certainly be unreasonable not to give consent for you to go abroad at a time of her choosing.

The dates we were supposed to be going abroad on the first holiday is this Saturday. Our child is in my care on this weekend as per the schedule. 1 month’s notice was given. The dates we are going on the second holiday is during one of the court-ordered 1-week periods during which our child is in my care. 7 month’s notice was given and 1 week’s notice was given before I paid for the flights and accommodation (in case there were any legitimate or reasonable objections). There is nothing written in the order that states that we may only go abroad when our child’s mother chooses, indeed that would be rather unreasonable for my ex-partner to be in control of the timing of our family holidays.

For the holiday you want in the summer. I suggest you book tickets and share them with your ex. Ask her to confirm she will hand over passport 4 weeks before travel. This would show that you are in a position to take the matter to court if she really wants to go that way.

Yeah I said in my original message that I would like the letter 2 month’s in advance (I’m not confident that I can get an at-short-notice court date within a 1 month period given my experience with them so far!). I didn’t say exactly why but the reason is so that I have time to bring it to court.

In regard to the applications. I'd leave aside the enforcement (C79) in favour of a C100 requesting all of the orders you need. It may be necessary to handle the SIO for summer holiday in a separate urgent application.

As always, I speak only from my experience of similar. Other members may have better ideas.

The enforcement is for a specific medical issue (she’s an antivaxxer and despite being ordered to facilitate vaccination she didn’t do so. Sadly I can’t receive letters etc from child’s GP as the “system doesn’t allow it”). It’s so disappointing because after years of court battles and expense, it’s as if she has just went “nah I don’t need to follow the order, there’ll be no consequences if I don’t”

 

[Resolute]

In my understanding, the person who has a "live with order" has to give consent for the other parent to take the child out of the country. I agree this is unfair. If your ex withholds consent, you should not take the child out of the country. In all likelihood you you would not be able to, no passport.

If you have shared tickets with your ex. She knows this is booked and paid for. Hence, you could apply for an SIO.

My suggestion on asking her to propose a date was based on the assumption that she will not. If she does not, you have categorical evidence of an unreasonable obstruction. If she does, you've demonstrated that there is no reason you should not take the child abroad. Either way, the matter progresses. If you would need a certain amount of notice and would not be able to travel on certain dates. Stipulations can be made when you request.

The SIO on vaccination can be dealt with as part of the CAO. Court can order disclosure of medical records. If vaccination has not been done. You can request an order that it is carried out by you. This may also demonstrate that greater involvement from you is necessary if the child's interests are to be protected.

 

[BigLes]

In my understanding, the person who has a "live with order" has to give consent for the other parent to take the child out of the country. I agree this is unfair. If your ex withholds consent, you should not take the child out of the country. In all likelihood you you would not be able to, no passport.

If the person who has a “live with order” does not give consent for the other parent to take the child out of the country then the legal recourse is a specific issues order. Given that the existing order mandates that “mother shall not unreasonably object to father taking the child abroad”, it would appear that there is a very strong case for such a Specific Issues Order being successful. Such an application can be made as an emergency application such that it is granted before the date of the holiday. I have also heard of a costs order being made in instances where a parent has blocked a holiday or withheld a passport and financial loss has occurred to the other parent (although obviously I would take proactive legal steps to prevent such a loss from happening).

If you have shared tickets with your ex. She knows this is booked and paid for. Hence, you could apply for an SIO.

My suggestion on asking her to propose a date was based on the assumption that she will not. If she does not, you have categorical evidence of an unreasonable obstruction. If she does, you've demonstrated that there is no reason you should not take the child abroad. Either way, the matter progresses. If you would need a certain amount of notice and would not be able to travel on certain dates. Stipulations can be made when you request.

Ah yes sorry I responded above before reading this paragraph. Yeah I follow the logic but there are one-week periods set aside for holidays in the summer, alternating between each parent. On a family holiday with multiple families (such as ours this summer) there is little leeway in terms of choosing holiday dates. The purpose of the courts allocating these weeks to each parent was so that our child could enjoy holidays with his respective paternal and maternal families. It is ordered that our child be with me on those 1-week summer periods. If there were some special reason why our child couldn’t be with me (such as a maternal family wedding) then I would consider being flexible and that’s why I gave a week’s notice before the holiday was booked. I received no reply so I went ahead and booked it. The holiday is booked now at considerable expense. I can foresee no reasonable excuse for denying our child a fantastic holiday with his family, especially given that the trip abroad falls within a 7-day holiday period which our child would spend with us anyway.

The SIO on vaccination can be dealt with as part of the CAO. Court can order disclosure of medical records. If vaccination has not been done. You can request an order that it is carried out by you. This may also demonstrate that greater involvement from you is necessary if the child's interests are to be protected.

I have access to our child’s medical records. The order however mandates that all information is shared. The method of checking medical records is impractical and the logical thing to do (and in fact what is ordered) is that mother shares all information sent to her by medical professionals. By neither sharing letters and texts sent by the GP, nor arranging vaccination appointments, the order has been breached. The obvious solution would be to allow me to be the point of contact with our child’s GP but the court’s haven’t liked this idea so far.

thanks again for your response, it’s good to get feedback

 

[Ash]

Ok so your overseas holiday is booked for this coming Saturday? And you've sent her all the details. Is there anything in the order about her giving you the passport within so many days of a booked overseas holiday? I think it could be very tight to get a specific issues order at this short notice, for Saturday. Before the pandemic it was possible to have a hearing at 1 or 2 days notice for a holiday. It "might

" be possible but it's midweek already.

You're correct, if you have defined holiday weeks you don't need to ask your ex which dates she proposes - you have the dates court ordered and she has to stick to those. What it's about really is getting her consent to go abroad. I can't say much more until I know about passports.

Otherwise you just email and say - I will take it that you are in agreement with my holiday abroad on x date as you have not responded to say you don't agree. Please can you provide the passport to me on x date.

The passports are her way of avoiding committing to anything though. If and when you do apply to vary you can use all this as evidence as to why there needs to be a lives with both order.

As for the applications. The application to vary (C100 is the main one) - sometimes it's better to apply to vary than to enforce an order and you can deal with the whole lot in one. The fact she breached the order about vaccinations would make your application to vary stronger.

So I would see it as two separate issues

1) The application to vary (using all the issues above as a reason for the order to be amended to shared care)

2) A specific issues order as and when needed before a holiday - try to apply two weeks before the date of the holiday. You'll get it ordered if you provide confirmation of booking.

If the holiday you need the SIO for is before the application to vary you can also ask for that clause to be removed from the order at the application to vary (but they won't do that at an SIO hearing - they will just deal with the holiday order).