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Is it a breach?
#1
I'm having yet another issue with my ex. We had a final order given two years ago, which she breached repeatedly so I took her back to court. The main breaches were during school holidays where she would take them away when it was my time and refuse to give anytime back.

We had another final hearing in September which addressed the issue. The magistrates told mum that she was to follow the court order and couldn't just book holidays in my time. I asked that it be written in the order that if she did it again I was to be offered the time back, where possible. The magistrates agreed and it was put in as an amendment.

I'm supposed to have them one night in the week and alternate weekends.

My ex has now told me that she has booked a week away in one of the 2 week holidays, which means I'll lose 3 nights and 5 days contact time. I have proposed that I get some of this time back in the first week of the holidays. She has refused and says that she is not breaching as she's allowed to take them away for 28 days without my permission. However, I felt that the magistrates were very clear that this wasn't the case if I was meant to be having my contact time in that period, hence the amendment that I get time back. She's adamant it's not a breach. I doubt she's sought legal advice, is she misinterpreting the order or am I?

Where would I stand if I returned to court less than 6 months later - there have been other issues, such as her boyfriend threatening me and her reducing my court ordered contact time on Christmas day. I'd like to avoid going back to court if possible but don't want to lose time with my children or allow her to think it is okay to continually break the court order. I would really appreciate any advice you can offer, thanks.
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#2
The family courts wont see too much wrong with your ex booking a holiday for a week during a 2 week holiday schedule. They will however if she doesn't make up the time you are losing out where you should of had the children. she has been warned about this before and needs to start listening or it will be time to enforce yet again
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#3
It's not a breach if you agree to it. So for example if you said you agree to that but only on condition that you have x extra days at Easter from x date to x date - and she agrees, then that is seen as agreed between the parties (I would also always make it clear that this is "on this occasion and arrangements revert to those in the court order from x date" to cover yourself.

However if she has not agreed to additional time - then basically there is no agreement - you're not agreeing to her taking your time for a holiday because she isn't agreeing to arrange alternative time. So then it would be a breach if she takes them over your time without your agreement.

However, she may be being a bit clever. Because holidays are a high priority with courts and if she applied for a specific issues order to get the holiday ordered, she would probably get it - although I expect the courts would then give you extra time. I am just wondering if it's possible for you to apply for a specific issues order over this matter of her holiday. Mark might know. Rather than have the whole enforcement or variation application business. Also of course kids love holidays so it's manipulative.

How far away is her holiday? It is a difficult situation as yes you want to avoid going back to court too often, and she will push for as much as she can get away with and hope you'll just accept it.

Does your order actually have defined dates - eg every other week-end from xpm Friday to xpm Sunday, every Wednesday from xpm to xpm Thursday? What does it say about holidays.

I'm a bit unclear about when her holiday is. Is it during term time when they should be with you? And how old are they? My ex did this a lot - taking term time holidays and cancelling son's time with me, also claiming the court order said she could go away for up to 28 days (thick or just kidding themselves!). And said no I could not have "time back" once it had gone. It's completely unreasonable and not thinking about the kids. If your order isn't defined she may not be in breach. Eg if it just says the Mother will allow reasonable contact as per the attached schedule (my first order said that and it wasn't enforceable).

I think I would try a Biff email first - if you haven't already. And try a compromise:

"Dear Ex Name

With regard to your proposed holiday with the children x date to x date, this is during term-time and also over time when the children are in my care, and as such this would be a clear breach of the court order if we did not agree to change the arrangements in writing. I am, of course, happy for the children to enjoy holidays, providing the arrangements with both parents are still in their best interests. On this occasion, I will agree to the children missing x date to x date and x date to x date with me, but on the basis that instead, they come for an additional night on x date (before they go away) and two additional nights on their return, with the arrangements reverting to those in the court order on x date, with the children coming to me for the week-end of x date as usual. I am not in agreement with term-time holidays generally, due to the children missing school, so my agreement on this occasion, is also on the basis that the school will agree to the time off as well. For clarification, the resident parent may take the children abroad for up to 28 days without the other parent's permission to leave the country - however that has to be on the resident parent's time - if it is over my time, it needs agreement or it will be a breach of the court order".

That might give some leverage. But as you say she has probably had legal advice and it could be difficult to enforce. To enforce you have to show that there is no good reason to breach. She may argue that the holiday is of educational benefit or something and the courts favour holidays anyway - so they may not enforce it and that doesn't give you your time back either. At best they may tweak the order wording. It sounds like the bit in your order about extra time is a recital rather than ordered - it is much harder to enforce a recital - I was informed that a specific issues order is the way to enforce a recital - ie have it put in the body of the order instead of a recital.

Because that is an issue. Most schools won't give time off for term-time holidays, parents take the time anyway unapproved and risk a fine. Because it still works out a lot cheaper than a holiday during the school holidays. She would be liable for the fine though (I was also informed of that, that if she took the holiday, she gets the fine).

So you have a couple of options.

I would try sending the biff email first (if you haven't already). I suggested extra time before they left and when they come back rather than extra time in the holidays as it shows a court (if you ever need to use the emails for evidence) that you are thinking of the childrens interests for regular and significant time, rather than just "getting extra time later".

It might make her realise it would actually be a breach and she may agree to something. On the other hand she may already know and just be banking on the fact that a) it probably isn't easily enforceable and b) you may not bother.

So if she doesn't agree, I think I would apply for a specific issues order to have the recital put in the body of the order and the court will see it is a breach at that hearing and make things clear to her! Having said that it depends how soon the holiday is. If it's fairly imminent - in the next week or so - you could apply for an urgent 48 hour hearing. If it's three weeks away it may not be classed as urgent and then Cafcass may get involved - although that probably isn't the end of the world but I fell foul of the "conflict between parents" attitude that Cafcass had, as being harmful to the child - plus they believed every word she said (she was clever and said I only think about "my time" and am controlling and rigid and won't be flexible). Of course if you have it all in writing - emails- the court/Judge will see that you were not being unreasonable or inflexible and she was.

The point being that even with a defined order, both parents are expected to show flexibility on occasion, so it would be in your interests to formally agree to this, if she would agree to some additional time with the children before and after, to keep continuity with both parents.

In the end I applied for variation, lives with both parents, an extra night a week and a defined order. However I waited until a year had gone since the previous hearing - which was tough but was told they don't like people applying again so soon. Do you have defined school holidays?

Of course if an ex was happy to make sure the kids saw you regularly, we wouldn't have any objection to not seeing them for a couple of weeks for a holiday! But they are such takers and try to shave off as much time with you as they can in my experience.

The reason I applied for "lives with both parents" was to get rid of her "resident parent with sole rights to do whatever I want" attitude.
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#4
I reported it to the police and I haven't been hostile or aggressive ever, so there's no proof of that either. Thanks for the advice, much appreciated.

I asked for it to be enforced and got it varied so that it added about her booking holidays in my time. She's not replying now so don't know what to do, I know I can't mither as then she can say it's harassment.

I've tried to formally agree but she's refused the extra time. Thanks for your informative response, I'm going to try your email and see if she replies to that, but I'm not holding my breath.

My order says when I have them term time and in holidays, I asked for it to be specific to avoid this kind of thing but she just does whatever suits her sees any attempt at compromise as being hostile or unreasonable.
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#5
the best thing to do is to agree to the holiday but only If lost time is made up. If she isn't going to agree to make up lost time then it will be a breach of court order as you not been consulted about it. it isn't a police matter though , police cant do anything about it. Its also not a breach until she actually goes on holiday
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#6
What did you report to the Police? Her boyfriend threatening you?

It sounds like your order wording needs to be tighter. If the order just says you asked for xyz. Not it is ordered that xyz.

It took me a while to understand court orders. The only bits ordered (that can be breached) are the bits under "it is ordered that" or "the court orders that" and then the things ordered come under that bit. Anything above that bit is a "recital" - something that's agreed or advised as good practice but not ordered. Some recitals can be enforced but others can't.

The main thing is if your order defines when the children are with you during term time. If it says - every other week-end and every wednesday night. Then if she takes them away when they should be with you, it's a breach if it isn't agreed in writing. So regardless of the bit about the holidays, is the term-time schedule clearly defined in the order? Under the bit that says "it is ordered that".?

Ok so if she doesn't reply you'll have to wait and see what happens. Maybe she won't go (she could have been trying it on). If she does go on holiday and has not agreed any extra time then you could either apply for enforcement (it is a breach of the regular time) or apply for variation to get the order more clearly defined regarding things like holidays in term time. I now have a clause in my order that says neither parent will take holidays during term time unless agreed in writing between them and only if the school also gives consent. Of course she still messes about wth my time in school holidays! Wanting to change dates etc.

I think if you sent that email it might make her think - she'll probably know you'll apply for enforcement as you mentioned a clear breach. Basically if she doesn't reply there is no agreement so if she goes on holiday it's a breach. What you really want though is to prevent this happening again hence tighter order wording.

I have only had once experience of enforcement (which wasn't good) but from what I learned about it, if you want the order tightening up you're more likely to get that from applying to vary than from enforcement. On the other hand if it's too soon to apply to vary, then enforcement is more acceptable (and within that application you could request specific variation of the order to resolve such things).

Anyway wait and see what happens and if she replies. When is she talking about going away?
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#7
She's now agreed to the extra time. She has a transcript if the court hearing and keeps referring to. I haven't paid for that, I've just got the court order which I assume is the only relevant part. I'm having them for four extra days, totalling 6 full days which she's agreed to, however I don't think she's realised will be following my weekend so will be 6 consecutive. If she's agreed the dates then my keeping them wouldn't be seen as a breach, would it?
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#8
(02-25-2020, 02:57 PM)Londoniandad Wrote: She's now agreed to the extra time. She has a transcript if the court hearing and keeps referring to. I haven't paid for that, I've just got the court order which I assume is the only relevant part. I'm having them for four extra days, totalling 6 full days which she's agreed to, however I don't think she's realised will be following my weekend so will be 6 consecutive. If she's agreed the dates then my keeping them wouldn't be seen as a breach, would it?

I don't see a breach as she going on holiday for 7 consecutive nights. she is making up the time as she should. wether she has realised what your suggesting I don't know. just take the extra 4 days and you both move forward ready to tackle future issues Smile
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#9
Yay. Sometimes some firm but polite talking does the trick. You now know she really doesn't want to have to go to court again so you have some leverage. But always keep that blindingly reasonable calm, polite tone in emails - as if writing to a business colleage. It disarms them when they're looking for an argument and unnerves them a bit.

So the four days follows your normal week-end? If the normal week-end is in the order then she must know that they will be with you for 6 days. If there's any doubt, I usually confirm briefly with something like

"As per our agreement of x date, I confirm I will be collecting the children at x time for their usual week-end and returning them to school on x day at x time".

But I wouldn't do that just yet. Let it settle. Also don't do it at all if it's in the order that it's your week-end before the four days. It's always good to be clear with the wording as ex's can be tricky. Does she say an additional four days? As you asked for "additional" days that must be clear.

If the email you sent was as above it does mention the children coming for their usual week-end as well.
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