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Stuart J
Stuart J, Solicitor
Category: UK Family Law
Satisfied Customers: 20069
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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My brother has a residence order which provides for his son

Resolved Question:

My brother has a residence order which provides for his son (aged 7) to reside alternate weeks (50:50) with him and his exwife. The ex wife has previously attempted to get the order changed in her favour without success. She has now taken the boy without agreement during a week when he should be residing with his dad and has indicated by email that she will not allow phone contact and has no intention of returning him. This is the first breach of this nature, but she has previously breached other aspects of the order (eg failure to hand over the boy's passport). We understand that enforcement us by way of a C79 application, but how can we get this dealt with quickly? If we want to make a 'without notice' application, do we have to serve papers?
Submitted: 1 year ago.
Category: UK Family Law
Expert:  Stuart J replied 1 year ago.

Hello, I am Law Denning and I am a practising solicitor in a High
Street practice. I have been an expert on this website in UK law since 2008.
During that time, as you appreciate, I have answered thousands of questions
from satisfied users on a variety of subjects.
Because we are all in practice with clients and court and other
users, I might not always respond in
minutes, particularly evenings and weekends. Please bear with me in that
case

It is my pleasure to try and assist you with this today. Please bear with me
while I gather some further information from you in order for me to be able to advise you fully.


What does the order say exactly?
Customer: replied 1 year ago.
There are two orders in place - the original residence order and a subsequent specific issues order (applicant in both cases was my brother). The residence order provides that "he shall reside during school term for 7 days with father and thereafter 7 days with the mother, alternating thereafter on a weekly basis." The alternating week arrangement also applies to the summer holidays (which began today) save that each parent can seek the agreement of the other to a two week holiday period.
Expert:  Stuart J replied 1 year ago.

Why has she done this? Do you think that she is likely to remove the child from the area or go abroad?

There is obviously more to this.

 

It is indeed a C79 application. If He thinksat the child might be removed from the country or taken to another area, then the process may be eligible for legal aid. Legal aid is only applicable in cases of abduction or violence with regard to family matters.

Apart from enforcing the order, if there is a possibility of the child being removed, it would be necessary to make an application to court for a prohibited steps order also to prevent the child being moved or taken away

The application would better be made by a solicitor and can be done without notice if there is a chance that the child’s welfare is at risk.

If the mother may be unstable, it would also be worthwhile referring the matter to social services.

The way to get this in front of the court on an urgent basis is to attach a certificate of urgency (a letter) giving details of why the matter is urgent and asking for the court to hear it on an urgent basis.

The urgent application will carry more weight if the certificate comes from a solicitor. If the court is satisfied that the matter is indeed urgent, the court can make an interim order pending a full hearing. The whole thing could be in court within 24 hours.

If she has done this before and breached the ordered she may face a criminal sanction in the form of community service. Ultimately, if she continues to ignore the court, she can be given a short custodial sentence.

 

 

 

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Stuart J, Solicitor
Category: UK Family Law
Satisfied Customers: 20069
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
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