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HELP PLEASE Residence Order - L.I.P.

  • Andy C
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02 Oct 08 #53040 by Andy C
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Hi I am a new member to this forum, and i would like to know if anyone could give me advice on the following issue.
I have split up with my ex partner (never married) and i,m applying for residence of my daughter age 6. My ex has a daughter age 10 from previous relationship. Both of the children have been living with me since May, but the oldest child is back living with her mum.
Social services believe i have a good case against my ex for the way she mis handles the children with verbal abuse etc. And her constant alcohol and drugs misuse. Social services and the school have been involved since the feb.

Can anyone give me advice on how the courts would view splitting up the children.
I would encourage my ex to continue to have contact with age 6 so they can all spend time together.
I am also thinking of representing myself, my ex will get legal aid. any advice on self representing would be helpfull

Please please help :S

  • sexysadie
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03 Oct 08 #53460 by sexysadie
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Courts don't usually like to split up children but as the elder one isn't yours by birth and presumably you don't have parental responsibility, things may be different. I think you should get specialist legal advice, even if you then represent yourself.

Best wishes,
Sadie

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03 Oct 08 #53471 by Andy C
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Hi Sadie,
Thanks for the reply, can you suggest who i should contact reg specialist legal advice and does it cost??

thanks AC

  • Elizabeth
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04 Oct 08 #53473 by Elizabeth
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Hello Andy C,

I am not sure about children being split up when they are not actually blood related but my question would be that your ex-partner is capable of looking after the 10 year old then the court may not see it as clear cut that your 5 year old daughter would not be ok with your ex-partner also. It is my understanding that when parents are not married the mother automatically has residency unless there is good reason to contest it. You obviously feel there is good reason. Does the elder daughter's father also feel the same? If so the case would be strenghtened by his claims also.

Do the step sisters have a close relationship? The courts take into consideration the children's wishes and feelings but this usually starts from about the age of 11 depending upon the level of understanding of the child concerned.

I am a mother who has gone through the whole process of contested residency - not a pleasant experience and one that was totally instigated and engineered by my ex husband. The children were 8 and 11 at the time, both boys. the court DID allow them to be split up - and not only that - 300 miles apart from each other - natural brothers not step family - so who knows what will a court will do!

I would be careful not to get it to court stage - VERY costly and VERY lengthy - hearings are far apart and CAFCASS get involved - you will be in the grinding wheels of court process for a long time - trust me.

Do you live near your ex-partner? would it not be possible to come to an agreement that would suit you all?

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04 Oct 08 #53477 by Andy C
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Hi Elizabeth,
The elder daughters father has recently come out of prison and has been in and out over the last ten 9 years, heroin and theft, and is not a nice character at all, but i do know that he has been in contact with my ex, and i really dont want my daughter near him. And yes i do feel for the elder daughter as well. The sisters do have a fairly close relationship but not as close as others?

I would put it to the courts that i would arrange a good contact plan between sisters and mother, we all live in a small town but my ex is not a reasonable person so i dont beleive an agreement could be arranged. . . she may not contest??

thanks
AC

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04 Oct 08 #53634 by D L
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Hi there

The courts do not like to separate siblings (they do not distinguish between full and half), however, for every general presumption there is an exception.

If social services and the school have been involved since Feb and are supporting you, I see no reason why a court would not also support you. The court would rather split siblings and have one have a good upbringing, then refuse and have two children facing the risk of being taken into care or at the least have a poor standard of home life.

In terms of a contact plan, work with social services on it. If they are involved with mum and your step daughter they are likely to want to have an input, and seeking guidance is always a good idea.

As social services are involved, should mum contest your case will not involve Cafcass, social services will prepare the section 7 report...which takes me back to seek their guidance and act on it - demonstrating you can work with the professionals involved with the children is always a good idea.

Moving onto advice regarding self repping, I am in the middle of putting stickies on the forums with guidance - keep checking back over the next few days and guidance will appear.

However, in the meantime, here is Section 1 of the Children Act, which is referred to as the "welfare checklist" and shows you what the court has to consider when making an order in respect of a child:

(1) When a court determines any question with respect to–
(a) the upbringing of a child; or
(b) the administration of a child´s property or the application of any income arising from it,
the child´s welfare shall be the court´s paramount consideration.

(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to–

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

(4) The circumstances are that–
(a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or

(b) the court is considering whether to make, vary or discharge an order under Part IV.

(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

And finally, as an aside - Elizabeth, there is no presumption that a child should be with a mother. There is a presumption that wherever possible a child should be raised by a biological parent, but that presumption is rebuttable where it is clear that neither are capable of meeting the child's best interests.

Amanda

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