Varying a Final court order

[MAN_B]

Hi all,

I'd be grateful for any advice on varying a final order that was made in October 2023 re my 3 year old daughter.

Given the very limited time that I've been allocated with my daughter I'm considering going back to court in June 2024 to vary the order and ask for more time e.g. progressing to overnight stays as of September 2024.

Me and my daughter's mother live in London, about a 10min drive from each other and we only communicate via email.

Does anyone know the process of varying a final order?

Any recommendations are very welcome.


The court ordered the below at the final hearing:

• The child shall live with the respondent Mother.

The respondent Mother must make sure that the child has contact with the applicant Father as follows:

• Direct in-person contact for 2 hours from 10:30am to 12:30pm on alternate Saturdays commencing on 7th October 2023 until the end of December 2023.
• 3 hours from January 2024 until the end of June 2024.
• 4 hours from July 2024 until the end of December 2024.
• 5 hours from January 2025 until the end of June 2025.
• 6 hours from July 2025 until the end of December 2025.
• 7 hours from January 2026 until the end of June 2026.
• Direct in-person contact from July 2026 onwards on alternate weekends from collection from school during school term time on Friday afternoons to return to school on the following Monday morning and in school holidays from 5pm on Fridays until 10am the following Monday morning.
• In addition to the contact ordered in this Order, the Father shall have video contact with the child every Wednesday at 6pm in the intervening week to the direct in-person contact. The video contact shall be for a minimum of 10 minutes. The Father shall initiate the video call by video calling the maternal aunt’s mobile number (the maternal aunt’s mobile number having been confirmed by the Mother at a previous hearing).
• In addition to the contact ordered in this Order, from December 2026 onwards the Mother must ensure the
• child has direct in-person contact with the Father as follows;

(a) For one week of each of the Christmas and Easter school holidays every year.
(b) During the school half terms in February, May and October every year, which shall be on an
alternating basis, starting with the child spending the half term week in February 2027 with her father,
May 2027 with her mother and then October 2027 with her father, February 2028 being with the mother
and that pattern of alteration continuing.
(c) For two weeks of every summer school holiday every year which may be two consecutive weeks if
that is requested by Father.
(d) In addition to the contact ordered in this Order, the Mother must ensure the child spends time on
Father’s Day with her father every year.

 

[Peanut 21]

Crikey, that's an extensive schedule!!!
Were you represented in court when this was written up and agreed?

 

[DannyK]

Yikes, that seems harsh. Although at least contact seems like it will ramp up as soon as your child starts school.

My ex (the RP) also lives close by, and our daughter turned 3yrs old just before our Final Hearing in March.

And I was awarded;

1x Teatime, every Tuesday (4-7pm)
2x overnights every other weekend, Fri 5pm pickup from nursery, returning to mother Sunday 6pm*
Half school holidays when she starts school Sep 2024 (to start building up, I got awarded a week in June, Sep & Xmas 2023, etc)
30min FaceTime, on the Sunday evenings when not in my care

*This increased to 3x overnights every other weekend when daughter turned 4yrs old this month

So yours seems very tough. Do you mind if I ask if there were any safeguarding issues?

My ex and I are also locked in a pretty toxic situation, as she is furious I "won" the Court case (despite it being my ex that decided to dismantle our family as I said no to trying for another child - we are 49/46 respectively).

Of course there is no real "winner" and the biggest loser is the child..

Am thinking of Varying the CAO myself to get more time, but my CAO is less than a year old so will probably wait. And having read your story, I feel like maybe I had a pretty positive outcome..

But there are other Dads on here that may feel/know differently!

Good luck.

 

[Ash]

Hi. How old is your child? The eventual order isn't bad but it is very slow progression. To apply to vary it's the same as an initial CAO application. You apply on a C100 but instead of asking for a Child Arrangements order in the box on the first page, you put "Application to vary Child Arrangements order". You also refer to and attach the existing order to the application,

 

[Ash]

Sorry just saw your child is 3. No reason progression can't be up to every other week-end within 6 to 9 months,

 

[MagicJ]

How long after the order can you request a variation @Ash ?

 

[Ash]

I don't think there's a fixed time. It's sometimes advised to wait a year. It might be ok after six months but the more you have to go back with (ie the more bad antics and obstructive behaviour and evidence) the more likely it is to achieve a variation application. There are cases where someone applies to vary quite a short time after a final order, but there's always the "no order" principle and an application could be rejected.

Every case is different really though.

 

[DannyK]

@Ash What is a 'no order' principle? Sounds ominous..

 

[MagicJ]

Hey @DannyK , see below:

The no order principle is a legal principle that states that a court should not make an order concerning a child unless it is better for the child than making no order at all. The principle is set out in Section 1 of the Children Act 1989 and applies to both private and public law cases. The principle aims to discourage unnecessary orders and to promote parental cooperation and agreement.


For example, court could decide that 2 parents still living in the same house should not be in court for a CAO albeit Counsel will argue successfully that one of the parents are disruptive & uncooperative hence the need for a CAO.

For example, in your scenario, they may say, the child is still in a good position if we don't do anything albeit you would counter with relevance from Section 1.3 of the Children Act 1989 i.e. the Welfare Checklist, to show WHY both parents need to be involved in a fuller manner.

 

[Ash]

As Magic has said. But basically, if there is already an order that is being followed, and it has recently been made, the court could dismiss an application as not really enough time for anything much to have changed.

 

[MAN_B]

Hi G

As Magic has said. But basically, if there is already an order that is being followed, and it has recently been made, the court could dismiss an application as not really enough time for anything much to have changed.

I don't think there's a fixed time. It's sometimes advised to wait a year. It might be ok after six months but the more you have to go back with (ie the more bad antics and obstructive behaviour and evidence) the more likely it is to achieve a variation application. There are cases where someone applies to vary quite a short time after a final order, but there's always the "no order" principle and an application could be rejected.

Every case is different really though.

Thanks @Ash and @MagicJ

The information has been a big help.

To update, I've now been put on CMS and am thinking about only paying half of the amount each month. Any advice?

Also, Since the last order I've mostly been dropping my daughter at the handovers on average 30mins late. Do you think that when I go back to court later on this year to vary the final order, I can say to the judge that the lateness is due to me and my daughter wanting to spend more time together, and use this as means to get the time increased?

 

[MAN_B]

Anyone?

 

[mva]

you have to pay full CMS otherwise your ex will just inform them and you will in debt to CMS

re: dropping daughter late, your basically admitting to a judge that you have breached (although only by 30 mins) the existing court order. I would not mention lateness or be late dropping back.

 

[MagicJ]

To update, I've now been put on CMS and am thinking about only paying half of the amount each month. Any advice?

Your EX has notified CMS that you are living seperately, they will have taken your details from HMRC (last FY gross pay) & calculated a percentage.
This is payable by law & you cannot avoid this permanently, they do accrue arrears & charge interest so be careful.

The only way to reduce this is to agree a direct payment & for both of you to inform CMS of this.
Alternatively look for potential deductions that can apply OR if last years pay is not representative ask for a re-assessment with evidence.

 

[MagicJ]

Also, Since the last order I've mostly been dropping my daughter at the handovers on average 30mins late.

As MVA stated, cross posted so just supporting the view this is not a positive & could actually allow your EX to vary for LESS time.

 

[MagicJ]

Do you think that when I go back to court later on this year to vary the final order, I can say to the judge that the lateness is due to me and my daughter wanting to spend more time together, and use this as means to get the time increased?

The best approach you will have here is the one @Ash identified, capture all her breaches with evidence then when you have sufficient to show it is persistent you can approach for a variation with a greater chance of getting it.

 

[Ash]

Agree with the others. Your best chance of success in the future is to be whiter than white. To always be on time and never late, and to always pay Child Maintenance as assessed. You can then say this in position statements and it shows you are (in their eyes) a good co parent.

Are you able to manage the CM payments though? I know this can be a big struggle for some who have rent and bills to pay and there isn't enough money coming in to cover everything. If you literally can't afford them then it needs looking at, but just only paying half will mean you accrue arrears.

 

[MAN_B]

Hi Guys, thanks a lot. I really appreciate the advice.

Looks like going forward I'll drop my kid off on time and pay CMS in full. I get so wrapped up in thinking of ways to get more time with her it drives me nuts.

Yh, I can manage making the CM payments, albeit begrudgingly. I read online about how some fathers have struggled with their mental health and even committed suicide due to the abuse the CMS and former partner put them through in regards to finances and was immediately put off engaging with them.

Would you say that 4/5 months of me dropping my kid off on time and following the final order to the T going forward is enough before I apply for a variation?
(the final hearing was in October 2023 and I only get to see her every other Saturday)

 

[Ash]

I can completely understand why you felt like dropping her off late if you only see her every other Saturday. Was there no progression in the order. Yes I'd say that would be a good move in a few months.

 

[MAN_B]

You truly find out how evil people in general, and women in particular, can be finding ourselves in these situations. It's a disgrace that fathers are demonized, yet all of us here are a testament to how that's not true.

There's progression for it to increase by an hour every six months (every other Saturday) until July 2026, when it will then go to alternate weekends i.e. Friday to Monday (I currently get 3 hours until June this year, it then goes to 4 hours).

Apart from breaches from my ex, would emphasizing how much time me and my daughter are missing out on and I'd like to pray a proper role as her dad e.g. taking her to school, nursery, read a bedtime story, etc, help at all?