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Problems with Court Ordered Indirect Contact
#1
Hi All,

So part heard final hearing took place on July 7th, mum stopped all contact at beginning of lockdown. Court ordered it must restart immediately but she now claims she has diabetes and has been instructed to shield (However still not provided any evidence of this). It was instructed that daily Skype must start immediately and that face to face contact would resume from 1st August.
  • First 5 Skype contact did not happen. I sent the ex a polite reminder but she ignored. 
  • After 10 contacts, it was apparent that Mum was coming into the room and speaking to daughter in mother tongue (Mandarin) and seemingly telling daughter off for saying certain things to me about who they have seen etc
  • I sent polite email asking mum to refrain from interrupting the calls as per court order
  • She sends me a reply totally ignoring what I have said but threatening me with the police and legal action for harrasment and that I should not contact her at all!?
  • During the remainder of July there was another 4 missed contacts, no explanation given.
  • August 1st, contact went ahead as planned and was great, had really missed not seeing my little girl in person and we had a fun picnic in the park. Towards the end of the visit my daughter had small trip and grazed her knee. As mum was not present at pickup or dropoff, I explained what had happened to a lady who I had never met before, but I presume is the ex's friend or possibly the new live-in au-pair (despite the ex apparently being high risk etc)
  • Sunday 2nd August, no skype, sent polite email saying had been trying all morning but not online past 2 days I have also tried but still not connecting. 
The court order is clear as day that Skype must take place on all days other than face to face contact days and the mother must make an agreement with me if for any reason it has to be adjusted.

I have been through similar in the past where she just ignores the order with no consequence whatsoever. On the hearing in July the judge was very good and could see what the ex was up to and had said she will lose all credibility if she has lied on oath about the condition which was preventing her from allowing contact to take place.

So, what do I do now with regard to addressing the skype contact not going ahead? In my mind it is not unreasonable to send ex an email stating what the order says. However it is almost certain she is creating a situation whereby she can go back to court in October and present to them that I am harassing her (by sending emails about the order not being followed), when it is her that is doing everything possible to agitate the contact progressing with seemingly no genuine reason. I have been keeping a journal of the contact schedule. Do I just hang in there and present it all back to the court in October, or do I have a point where there is enough breaches that have occurred that  can make an application back to the court for enforcement (It seems kind of petty). Genuinely at a loss at to what course of action to take...damned if I do, damned if I don't.

Thanks in advance.
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#2
Not damned if you do.

You should certainly not wait until October. You should have no more than two breaches before you enforce. You should write to her - like you I think that's entirely reasonable - and say you'd like to get things going again both face to face and via Skype. You'll need that email anyway to show to the court to 'prove' you made a reasonable approach to resolve things.

Enforcenent is easy and free if you're on a limited income. Don't bother with a solicitor.
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#3
(08-04-2020, 09:06 PM)Chi21965 Wrote: Not damned if you do.

You should certainly not wait until October. You should have no more than two breaches before you enforce. You should write to her - like you I think that's entirely reasonable - and say you'd like to get things going again both face to face and via Skype. You'll need that email anyway to show to the court to 'prove' you made a reasonable approach to resolve things.

Enforcenent is easy and free if you're on a limited income. Don't bother with a solicitor.

I agree. You need to enforce on form C79 now, or the defence she will run is that you have accepted the change.

Regarding the claim of he "Shilding", if its brought up at Court, as the Judge to set that down for a "Finding of Fact" Hearing.
If your ex is that much at risk, then maybe a change of residance is the answer also.
Posts made by me are my opinion and any factual information should be checked out. If you do not have a Solicitor, often your local CAB can get you some initial advice.
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#4
And whilst it seems to be my answer to everything right now (!), common sense dictates that if the resident parent cannot allow - practically or emotionally - the child to have a relationship with the other parent, then they should be moved.

Nor is it to be seen as a 'last resort'. That is the finding of the judge in 'Re B':

https://www.stowefamilylaw.co.uk/blog/20...t=Transfer of residence was not a “nuclear option”%2C,well-being. The use of such hyperbole is unprofessional.
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#5
Absolutely and further reinforced by the President of The Family Division himself just last year on appeal in Re: L.

Very helpful case law for somebody in this position.

Heres an article by the counsel of the case summarising the case.
https://www.familylawweek.co.uk/site.aspx?i=ed201173

And here is the published judgement in full.
https://www.bailii.org/ew/cases/EWHC/Fam/2019/867.html
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#6
That first link would be very helpful to Tigre as well I think!
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#7
You know your law JamW!

I think many of thr fathers on here would be surprised to know how many cases of transfer of residence there have been and just how closely their cases mirror those cases!

Good point Charlie, I'll post all the links on Tigre's latest post.
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#8
As do you Chi Wink

I agree there are many cases where if the invisible and varied (unfortunately) 'threshold' is crossed and with the right approach and counsel, backed always by the leading authorities, it can absolutely happen.

And there are so many cases where the 'right' order was made on appeal, overturning the first instance court judgement. Just think about that, if those dads (majority are dads) did not have the funds, knowledge, drive to appeal, they would simply have been one of the countless who feel they have been let down by family court. In fact any obvious error in law or on the evidence in court, but even procedurally is potentially quite likely to be overturned on appeal. Because they must! As long as you can demonstrate this and bolster your appeal with the case law.

Unfortunately it seems most appeals happen on the one type of hearing that appeals usually fail. The fact finding. It is rare for a fact finding to be overturned on appeal for various reasons main one being the very wide discretion due to the characteristics of such hearing. Sadly and at times surprisingly, it is rare to find dads appealing a judgement they are not happy with no doubt because of the costs and more specialised approach required to succeed. But a good counsel, strong papers/skeleton arguments and the right case law, and the chances are not as low as many think, to have the order they feel should plainly have been made in their case!

I feel proud to have helped a dad, on a forum, actually succeed in overturning an order and obtaining 50/50 on appeal! Of course the wrong order had been made in his case, the evidence supported the 50/50 including Cafcass, and the judge erred in departing greatly without good reason from the evidence and Cafcass!

The point is, I try to present case law every chance I can in this forum when I can recall similar circumstances on existing case law.

Also statistically, the higher courts make more 'generous' arrangements in their orders. Various reports confirm this including this excellent report including by Nuffield.

https://www.nuffieldfoundation.org/proje...en-parents

So dads need to use the existing case law in their arsenal and not be afraid to appeal (but correctly) if they feel their judgement is flawed!
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#9
That's a very good point JamW.

And it's also true that dads should take a look at the law before going to court. Prior judgements indicate what's possible and what they might achieve. I think that too many dads think their lives are going to be ones of being in and out of court for unsatisfactory outcomes. Even if your ex doesn't want to play ball it is possible to take control in court.
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#10
Great stuff JamW. I did some fairly depressing research today though that made me realise if I had £50 to £60k I’d have a very good chance of residency. 20k for a particular psychologist. The other 30k plus for a particular legal team.

But they did use some of the case law you mentioned. The key seemed to the psychologist report - expert witness recommendation.

My life savings are all gone on court hearings unfortunately.

Something you said Jam - I wanted to ask - so how do you go about getting a case heard at the High Court? Do you apply to a High Court?

Sorry for going off topic Bazydog.
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