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Denied Child Contact. Allegations Domestic Abuse
#1
Hi
 
I was looking for some advice in respect of applying to the court for contact and residence of my 2 yr old son.
 
I am the father and married to mother at time of child birth. Relationship between me and mother has broken down and she left the family home with the child without notifying me on 10/01/2018.
 
She has fled to a women’s refuge and has refused me all contact with the child although she has confirmed the child is safe. Her uncle made false allegations of domestic abuse and she provided a witness statement to the Police. This was done in order to secure a domestic abuse visa so that she can stay in the UK as she is living in the UK on a spouse visa.  
 
I was recently interviewed by police and am advised by Solicitors there is no evidence against me and there is likely to be no further action. (her word against mine)
 
There have been a number of incident against me by my spouse such as verbal abuse, spying on me, not letting me in the home, withdrawing all money in joint account, abusing my parents, threats to abduct child abroad, threats of no contact and on two occasions she made threats with knife all in front of the child. She has also tried to harm herself and ended up in Hospital but police and social services took no further action.  There are various other incident that have occurred recently. I did not report her to the Police and do not want to proceed this way.
 
The mother does not work and has no access to public funds although if granted a new visa this may change.
 
Based on above I firmly believe it is in the best interest of the child that not only should I be given contact but full residence.
 
I have worked in the legal sector and would like to apply as litigant in person although I have not worked in family law.
 
From experience what are chances the courts will grant contact and full residence to the father?
 
Would it be good idea to list the allegations against the mother on form C1A when applying to the court highlight the domestic abuse against me?
 
Any advice on my situation would be greatly appreciated as it has been several weeks now and I have not seen my child and would like to apply to the court.
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#2
Anything you apply for needs to be based on clear evidence in the form of documents. You can apply for a Child Arrangements order and ask for child to live with you, or to live with both parents 50/50. But if you want to show the child is at risk being with the Mother then you need very clear written evidence. In fact if you have that, and the child is at risk you would really want to make an urgent application ex parte for residence while matters are looked into.

But - I don't think you have enough evidence. Unless you have a police or social services report saying child is at risk of harm with the Mother you can't really go for an urgent hearing for "residence". If you have some evidence of welfare issues for the child you could apply with a C1A attaching that evidence to a C1A. And you should ask social services to become involved and keep an eye on things.

Anything that is not written evidence (eg an email or a report from an official body such as social services or police) will be classed as "he said, she said" or just slagging each other off. As her story will be different to yours.

Whatever your ex has done to you, it will be looked at, as to whether the child is at risk from either parent.

Do you have any evidence of the threats with the knife? eg a police report? If not then you can't really use it.

The situation at present is - you are separated, she has taken the child and is living in a refuge. There is no police report against you. Courts look at facts. Do you have a copy of the Police report showing there is nothing against you? You mentioned social services and police were involved at one point but decided to take no further action - try and get hold of copies of these reports and see what they say. Even though they decided no further action it may be written evidence of what your ex did.

From the sound of it you don't have grounds for an urgent application saying the child is at risk - because police and social services decided no action. Therefore you would go through the usual process of a C100 application for Child Arrangements order. For a C1A you have to cite whether there are welfare issues relating to physical, emotional or pyschological abuse to the child (it also asks if there are any for you but I would ignore that and only relate to ones for the child as that is all the courts are interested in really).

Again, unless you have documentary evidence to attach to the C1A showing there are risks of abuse, it will not be considered.

I actually submitted a C1A with my application recently citing emotional and psychological abuse and attaching a social services closure report. This was basically ignored in terms of risks to child, but did help my case at final hearing, and did help dismiss any accusations against me by Cafcass.

You very much need to keep it child focused and not sound like you and ex are just accusing or attacking each other.

I would suggest that the child is in a place of safety with the Mother and Social Services and police have taken no further action and you can't really claim risk of abuse to child.

Unless you have medical evidence that Mother is suicidal that is dated after social services decided to take no action.

Hope that helps. In answer to your question - I would not highlight the domestic abuse against you unless you have a police report about it.

Unless the child is being abused, with evidence to show that, then they will not give sole residence to one parent. You could argue a case for child living with you and spending supervised time with Mother. But you do need evidence.
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#3
Thankyou very much for your reply which is very useful.

The majority of incidents are as you mentioned is my word against hers.

I did notify social services over the phone of the knife incident that took place in front of the child however they advised they did not feel there was a risk and were closing the matter. I would have thought this would be seen as harmful to the child. Knowing the mother she is likely to say that she intended t harm herself with knife.

Can i simply make a request to social services and the police for disclosure of the information about the incident of self harm. would they disclose this to me?

Is there any arguments in respect of her immigration status. She is only on temporary spouse visa and does not have permanent accommodation and if her visa application is refused she may leave the country and take the child with her.

Based on lack of evidence of abuse from either side I would make the following arguments for residence:

Respondent is on spouse visa which upon separation would not be valid and she may be asked by the immigration authorities to leave the UK anytime.

Respondent does not have access to benefits and there are concerns with how she will be able to financially support herself and the child, given that she has made it clear she does not intend to use any financial support provided by me.

Risk of abduction – There is risk that she can unlawfully take the child abroad at any time.

Wishes/Feeling of Child – child gets upset and cry's when I am not around. He has physical and emotional attachment to me and the wider family.

The child was due to be placed in a pre nursery school/play group and due to be taken away by the respondent, the child is missing essential educational needs and interaction with other children to prepare him for nursery.

Concerns with where the child is living and the long terms effects the current change in his circumstances and having no contact with me and my family will have on him.

As respondent’s mother tongue is not english, the child may not be learning english and this will affect his long term development and education.

Respondent does not work and has not access to benefits, no family support so in the long term will she be able to provide a stable living environment, clothes, food, transport, educational needs.

Child needs consistency and stability in his life.

Alternatively would be best to apply for a Child Arrangements order and ask for child to live with both parents 50/50 and not raise the domestic issues or the above. I am sure the mother and her solicitors will likely raise allegations of abuse that were made against me to stop any shared residence and/or contact?

Would statements from family members of how she treats the child and of my character be considered?
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#4
You have to be careful not to sound hostile towards the Mother or bigoted in any way (even though your points are all valid and understandable but it is the way it may be looked at).

Risk of abduction is an issue. Although Mark knows more about right to stay/visa issues. I think she may still have a right to remain in the Uk even if separated or divorced - Mark might know.

Child needs consistency and stability in his life - that is the argument to go for.

I agree that witnessing the knife incident is harmful but social services closed the case on that and it is "history"

Statements from friends and family tend not to be taken into consideration.

You are right to have concerns that her side/solicitors will try and claim dv against you and prevent your contact - that happens a lot on here. Cafcass then investigate and may do a Section 7 report to investigate - during which time you may only get supervised contact in a contact centre until they finish their report and conclude there is no police report against you. That can delay matters for a few months with only limited contact - which is hard. So anything you have that counteracts those claims (eg police report showing you are clear) that you can send to Cafcass before a first hearing should help.

I don't think you can do a C1A for abuse if nothing has been found officially. Unless there is a risk of abduction and you have something like a text message or email showing the threat to leave the country.

Have social services or the police been involved since she moved out?
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#5
I only have a few call recordings of her saying she won't let me see the child or have contact. I also have recording where she has self harmed and then called me to say that is what she has done. There is also call recording where she said she would be callin the police to allege I was not bringing child home even though I advised her child was asleep at my parents home and I would be home when he wakes up. Within 10mins of that call police arrived at my parents home but took no further action. In hindsight I should have recorded all the incidents

I called police when she left to advise risk of abduction from uk but they took no action and neither did social services.
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#6
The call recording of her saying she won't let you have contact could be useful although I'm not sure if recordings are admissable in court (could be anyone I guess so hard to verify). Family courts tend to deal with paper evidence mostly.

I think I would stick to the route of applying for a Child Arrangements order, no C1A and get an interim hearing asap (usually within 4 to 6 weeks of application being submitted) to start the ball rolling for contact time with your son. I would suggest applying for 50/50 shared care/lives with both parents and not saying anything negative about your ex but focusing on your role as a Father to date.

Court is not real life really. There are hoops you have to jump through. If you get a 50/50 lives with order - it's a start - it means child legally lives with both parents. An order will help prevent abduction from the uk. If you have any concerns, once that's up and running, about harm then call social services.

The police and social services could label you as a troublemaker unfortunately if you keep calling them. It's hard but you have to go through the route of getting to legally see your son I think. If you really think she may up and leave the country then I'd suggest getting a free half hour with a solicitor to see if you can apply for an urgent order to block her leaving the country or something.
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#7
Thank you for your response and advice.

Is it possible to apply for full residence but if it is unlikely the court will grant this then is it ok to propose 50/50 shared or will applying for sole residence prejudice my position for 50/50.

I have most of c100 filed and will also be sending the form for disclosure of child's whereabouts as I don't have any address or is that not needed?

Do I need to send any evidence with c100, e.g text messages screenshots of mother denying contact and my communications,texts and emails requesting contact etc.

There is nothing on c100 regarding interim hearing, where on the form do i request this? Q5 or 6?
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#8
I spent a lot of money and time with barristers looking at this due to my ex emotionally abusing the children, and the consensus was that unless you have a report from a third party (teacher, social worker, doctor) etc, there isn't enough evidence to effect a change of residence. The second barrister (the one I ended up using) said I shouldn't even go for it as I'd look hysterical, and that going for 50/50 shared care was an achievable and realistic approach (which is what he won for me). In hindsight, he was 100% right.

People behave very badly during a breakup, but the courts have to take a long view.

What I would say with regards to mother's behaviour to you - report everything, even if you don't want them to take action. I made 2 police reports and 1 social services report, which meant that by the time my ex tried to have me done for assault, they just had to look at her record to see she was full of shit. If I hadn't done that early on, I may have found myself in trouble.
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#9
Agree with what Marwood said. Re the C100 - you can't submit any evidence with it. You can only submit evidence with a full statement at a final hearing. The application is for your case to be heard and then begin the stages and hoops to jump through. Ask for an interim order at the end of your piece in the "Summary" Box. I actually typed "see attached sheet" in the summary box and typed out a separate sheet for the summary (you then need to put your name on top and "Application for Child Arrangements" at the top, and at the bottom copy the statement of truth wording that appears under the summary box then sign it and date it.
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