Complicated family setup (applying for spouse Visa / UK Court for Leave to remove)

[LaddermanUS]

It wont make a difference because you are the dad. The same considerations apply - look at welfare checklist and think about your case and strengths and how you can best present them and by the same token consider the negatives and have answers ready

 

 

Thank you once again Racman, your advice is always very much appreciated. I am aware of the welfare checklist and thanks for advising that being the father wont make a difference.

 

Can I just ask if you can point me in the direction of anything to read on how an applicant having a residence order combined with there being minimal contact with the non-resident parent affects the case, both for and against? I'm particularly interested in what arguments could be mounted against LR being granted where the non-resident parent has erratic and infrequent contact with the children. I suppose I'm worried that what with the very unstable past the children have experienced with their non-resident parent, and now that things are nice and stable for them with me and my new wife, that it could be suggested that moving them to the other side of the world is unduly destabilising...?

[Racmac]

Thank you once again Racman, your advice is always very much appreciated. I am aware of the welfare checklist and thanks for advising that being the father wont make a difference.

 

Can I just ask if you can point me in the direction of anything to read on how an applicant having a residence order combined with there being minimal contact with the non-resident parent affects the case, both for and against? I'm particularly interested in what arguments could be mounted against LR being granted where the non-resident parent has erratic and infrequent contact with the children. I suppose I'm worried that what with the very unstable past the children have experienced with their non-resident parent, and now that things are nice and stable for them with me and my new wife, that it could be suggested that moving them to the other side of the world is unduly destabilising...?

 

If you want to read things I would suggest family law week - but be warned it is aimed at the legal profession and not light reading!

The arguments she will raise are

1. although there is limited contact the leave to remove will effectively destroy that relationship so how will you ensure it isn't. skype, updates once every 2 months, face to face visits - how and when.

2. yes she could argue that the move would be unsettling - so how will you counteract that? ie how will you make the transition at school - you will get their papers and reports, a reference from existing school, you have spoken to 2 different new schools and the pastoral care is blah blah blah.

 

Don't be negative about mum - ie keep it to facts - don't slag her off etc

[LaddermanUS]

If you want to read things I would suggest family law week - but be warned it is aimed at the legal profession and not light reading!

The arguments she will raise are

1. although there is limited contact the leave to remove will effectively destroy that relationship so how will you ensure it isn't. skype, updates once every 2 months, face to face visits - how and when.

2. yes she could argue that the move would be unsettling - so how will you counteract that? ie how will you make the transition at school - you will get their papers and reports, a reference from existing school, you have spoken to 2 different new schools and the pastoral care is blah blah blah.

 

Don't be negative about mum - ie keep it to facts - don't slag her off etc

 

Again thank you so much for your assistance, it really is greatly appreciated.

 

I have taken on board everything you have said and have already been doing some serious reading on case law! I am wondering If I should offer to pay for her to come visit the children in Australia at least once? My ex has no broadband where she lives but i researched today and discovered she could get fibre, I was thinking of offering to pay for fibre and offering to give her a new laptop with webcam so she can skype the children (aware of case law where mother was applying for LR to Hong Kong where judge discusses some of the issues in using skype and said 'you can't hug skype').

 

Just trying to cover all the angles

[CaptainC]

Again thank you so much for your assistance, it really is greatly appreciated.

 

I have taken on board everything you have said and have already been doing some serious reading on case law! I am wondering If I should offer to pay for her to come visit the children in Australia at least once? My ex has no broadband where she lives but i researched today and discovered she could get fibre, I was thinking of offering to pay for fibre and offering to give her a new laptop with webcam so she can skype the children (aware of case law where mother was applying for LR to Hong Kong where judge discusses some of the issues in using skype and said 'you can't hug skype').

 

Just trying to cover all the angles

 

Skype was one of the things that was specified on my order, even though they spelt it 'skypt'

 

I offered to send my son home every year, and also get a phone for him in his room so that she could call him. I also said that I would assist in sorting her somewhere to stay if she ever visited and would actively encourage him to contact his mum.

 

This was when he was 6, he's now 13 and has decided that he doesn't want to see his mum anymore, he's made the decision on his own and it's not too difficult because she has never made an effort to facilitate contact for years.

 

Last time he saw her, he was walking to the gym and she was drunk in the pub. He told me that's all she ever does and doesn't want to get involved with that. Pretty mature words for a 13 year old.

[LaddermanUS]

Skype was one of the things that was specified on my order, even though they spelt it 'skypt'

 

I offered to send my son home every year, and also get a phone for him in his room so that she could call him. I also said that I would assist in sorting her somewhere to stay if she ever visited and would actively encourage him to contact his mum.

 

This was when he was 6, he's now 13 and has decided that he doesn't want to see his mum anymore, he's made the decision on his own and it's not too difficult because she has never made an effort to facilitate contact for years.

 

Last time he saw her, he was walking to the gym and she was drunk in the pub. He told me that's all she ever does and doesn't want to get involved with that. Pretty mature words for a 13 year old.

 

Thanks for that CaptainC.

 

I was going to PM you following our previous conversations, there are some obvious similarities with our cases but yours 'seemed' more straight forward to me in terms of the fact you had a professional job offer in Auz. That must have added some weight to your reason to relocate?

 

I take it that was your main reason used in your case?

[CaptainC]

Actually at the time I was working for a British company in Australia, but my girlfriend at the time lived in Sydney.

 

It helped that I was already working in Australia at the time, but i don't think that it was a deciding factor. The child's wellbeing is the number one consideration.

 

If you can prove that the child is better off with you and would not suffer any loss by relocating then they will make the order in your favour.

[LaddermanUS]

Actually at the time I was working for a British company in Australia, but my girlfriend at the time lived in Sydney.

 

It helped that I was already working in Australia at the time, but i don't think that it was a deciding factor. The child's wellbeing is the number one consideration.

 

If you can prove that the child is better off with you and would not suffer any loss by relocating then they will make the order in your favour.

 

 

Better off with me and better off in Auz or just better off with me?

[CaptainC]

Better off with me and better off in Auz or just better off with me?

 

The first one.

 

You need to sell it to the judge and show that all angles are covered. Schooling, social life, and opportunities. The judge will ask him/herself will the child suffer with the lack of contact?

 

You will need to remind yourself when/if you're in court that this is about the child, and not what is in the best interest of the parents. From the sounds of things, there is so little contact with the mother that a move to Australia would not adversely affect the child due to lack of contact, because there currently isn't any in the UK.

[LaddermanUS]

The first one.

 

You need to sell it to the judge and show that all angles are covered. Schooling, social life, and opportunities. The judge will ask him/herself will the child suffer with the lack of contact?

 

You will need to remind yourself when/if you're in court that this is about the child, and not what is in the best interest of the parents. From the sounds of things, there is so little contact with the mother that a move to Australia would not adversely affect the child due to lack of contact, because there currently isn't any in the UK.

 

 

You bring instant clarity to my position Captain, thank you

[LaddermanUS]

Does anyone have an opinion on wether Barristers are worth their money? I was set on the idea of instructing a Barrister to review my written statement and C100 and provide advice on my case and then possibly to represent at final hearing. But Major Tom has made me think maybe I dont need a barrister! The other side is unlikely to have legal rep and im pretty quick thinking and good with paperwork, any advice please on legal representation and is it worth it?

[Racmac]

Does anyone have an opinion on wether Barristers are worth their money? I was set on the idea of instructing a Barrister to review my written statement and C100 and provide advice on my case and then possibly to represent at final hearing. But Major Tom has made me think maybe I dont need a barrister! The other side is unlikely to have legal rep and im pretty quick thinking and good with paperwork, any advice please on legal representation and is it worth it?

 

Courts are used to people self representing and it is far from unusual. I would advise a Barrister at final hearing if its contested and the other side are represented or the cafcass report is wishy washy or not in your favour.

For the directions hearings - particularly the first one I really wouldn't bother.

As far as I buying her computer and paying for skype - I wouldn't bother. She needs to make a bit of an effort if she wants any kind of contact

[LaddermanUS]

Courts are used to people self representing and it is far from unusual. I would advise a Barrister at final hearing if its contested and the other side are represented or the cafcass report is wishy washy or not in your favour.

For the directions hearings - particularly the first one I really wouldn't bother.

As far as I buying her computer and paying for skype - I wouldn't bother. She needs to make a bit of an effort if she wants any kind of contact

 

 

Thank you Racman

 

Can I just clarify my understanding of the process. Am I right in saying the first hearing is the directions hearing? Where the judge will inform us what information is required and length of time we have to submit?

 

The next hearing (the final hearing) is where Judge hears representations, discusses with both people and then makes a judgement ?

[Racmac]

Thank you Racman

 

Can I just clarify my understanding of the process. Am I right in saying the first hearing is the directions hearing? Where the judge will inform us what information is required and length of time we have to submit?

 

The next hearing (the final hearing) is where Judge hears representations, discusses with both people and then makes a judgement ?

 

the court will list it for a first appointment in about 6 weeks after issuing application. Cafcass will call you before hearing and ask you questions, they will do police and children services checks. At the first appointment cafcass will prepare a safeguarding letter and at the directions hearing it will be adjourned for cafcass to prepare section 7 report.

 

cafcass will then interview you and mum, speak to school etc then prepare a report.

 

Another directions hearing will take place and they will see if agreement can be reached. if not then you will be ordered to file witness statements and then listed for a final hearing.

 

that's the basics - there may be other stuff depending on your particular matter.

[Major Tom]

Like Racmac said, if there a possibility you are going in 50/50 for the last hearing I would have a Barrister, but our case is more like 80/20 in favour, Cafcass report is in our favour, and we self represented at first two hearings, Judge & Cafcass was impressed with our pack of information we supplied, they asked for extra copies.

[LaddermanUS]

the court will list it for a first appointment in about 6 weeks after issuing application. Cafcass will call you before hearing and ask you questions, they will do police and children services checks. At the first appointment cafcass will prepare a safeguarding letter and at the directions hearing it will be adjourned for cafcass to prepare section 7 report.

 

cafcass will then interview you and mum, speak to school etc then prepare a report.

 

Another directions hearing will take place and they will see if agreement can be reached. if not then you will be ordered to file witness statements and then listed for a final hearing.

 

that's the basics - there may be other stuff depending on your particular matter.

 

Thank you for the clarification

[LaddermanUS]

Like Racmac said, if there a possibility you are going in 50/50 for the last hearing I would have a Barrister, but our case is more like 80/20 in favour, Cafcass report is in our favour, and we self represented at first two hearings, Judge & Cafcass was impressed with our pack of information we supplied, they asked for extra copies.

 

Cheers Major Tom, I will keep this post updated

[LaddermanUS]

As promised here is my update on my situation:

 

I have had a meeting with a Barrister who reviewed all my paperwork (including previous social services reports and current child arrangements order). The meeting was very productive and although costly, I believe is probably money well spent as I left the meeting with all the answers to my questions and some very important advice and wording to be used on the C100.

 

I am currently completing the C100 and will be attaching some additional paperwork with it, including a chronology of events (key events since marriage break down), proposal for contact with my ex etc. Next week I hope to be in a position to begin the process of applying for my Partner visa online.

 

The Barrister believes we have good case, however the Caffcass report will be key. Barrister advised we may not need further representation, however the ball is in my court on that matter.

 

What was a surprise is the Barristers response to seeing my draft witness statement, which I wanted to get to work on as soon as possible. I was very fortunate in obtaining a copy of a draft legal document for the witness statements in LTR cases, so I have used this my template and have provided very detailed information the area I propose to move to, housing, finances, travel, schools etc. However the Barrister said it was too detailed and would need to be scaled back ! I was worried it wouldnt be detailed enough to be honest. Anyway its only a draft and i will now need to edit it down and then the Barrsiter has agreed to read through it closer to the time its requested by the judge.

 

I must say although I do feel confident it was reassuring to have a professional look over the case and provide an opinion.

[jodipodi]

Following with great interest.

Would love to hear any further updates.

I'd also very, very much appreciate any help anyone can offer me on the process... From when to get representation, how much it costs and how I tackle this in a step by step manner myself.

I'd be extremely grateful. The example of a draft legal statement you mention, I'd love to have a copy or know where I'd source one x

Edited February 24, 2016 by jodipodi

[LaddermanUS]

Well jodipodi my C100 was actually submitted to Court today !

I am happy to assist, if I can, if you would like to send me a private message, also Major Tom has just been through a very similar situation to me and may be able to help you.

 

Representation really for me was decided on a couple of factors. Firstly the likeliness of the respondent having representation, cost and need.

 

In my case its unlikely the respondent will have representation. I also went through a child arrangements orders last year so feel a little more confident in going to Court and the process involved.

 

I am not having legal rep at the first two hearings but will probably at the final (assuming there will be 3).

 

I did not want a solicitor because solicitors mainly handle 'process', amongst other things obviously, but im good with paperwork and correspondances and feel confident I can self rep. However what I did decide to do was pay for Barrister via the Direct Access Route (i called my local barristers chambers) and made and spoke with a barrister via email. They thought i had a good case and gave me some initial guidance. We then agreed a fixed fee of, well let's say it was just over £400, for the barrister to take a look at all my paperwork, review the C100 before its submitted, talk over strategy and also review the final witness statement as I had already written half of it! In all honesty the barrister was brilliant and I got alot out of it.

 

I wrote a detailed letter to my ex asking for permission and detailing my reasons and contact proposals. I never received a response and as such the c100 was submitted today. Along with the c100 i sent a coy of the letter requesting permission, copy of caffcass section 7 report (from last case) and some letters from social serv about some incidents last year.

 

Now about the draft statement - this was given to my by a solicitor i saw last year (free appointment), at the end of the meeting it was clear i could represent myself and I 'convinced' the solicitor to give me a copy of the document she had (which was a draft final witness statement). My feeling is i got lucky and I dont thinks she should have given it to me as its from a well known legal document supplier that you have to subscribe to. Im not sure if I should be giving out copies thats all. Perhaps send me that PM jodipodi

[LaddermanUS]

I now have my first Court date which is in a few weeks. Caffcass have written to me and say in their letter 'if there is enough time they will contact me about producing a safe guarding letter for the Court' !!!

[LaddermanUS]

Well 2 days ago I had my caffcass telephone interview (safeguarding children) and that went well. The following day received a copy of the safe guarding letter by email. Caffcass have not been able to contact my ex (she has not replied to letters, calls or texts from CC). My first court date is under a week !!! Nervous but have today been practising my opening statement to the Judge if I am asked to say anything intially.

[Major Tom]

Well 2 days ago I had my caffcass telephone interview (safeguarding children) and that went well. The following day received a copy of the safe guarding letter by email. Caffcass have not been able to contact my ex (she has not replied to letters, calls or texts from CC). My first court date is under a week !!! Nervous but have today been practising my opening statement to the Judge if I am asked to say anything intially.

 

Good luck mate! If you need a chat, give me a shout. :-)

[LaddermanUS]

Good luck mate! If you need a chat, give me a shout. :-)

 

I will mate, i want to chat, so will try next couple of days thanks pal.

[LaddermanUS]

Latest update :

 

So I have had my first hearing which went ok. I met with Cafcass (CC) first and had an interview. My ex never responded to the cafcass safe guarding calls / interview so she had a longer chat with CC before we went in.

 

I was prepared to read out a 2 min statement which would give the Judge a good grasp of the history, key points and where we are now. But the CC officer said no need as both judge the CC had already met in the morning to discuss the case and were well versed.

 

However it was obvious during the hearing that the judge wasnt well versed. But it wasnt too much of an issue. An interesting part was when the Judge asked my ex WHY she would be denying us a move with the children. She could not answer that question clearly and concisely, in fact she was so poorly prepared the judge actually gave her some suggestions on what basis she could argue why the children should not be allowed to relocate.

 

At the end we were instructed to file a written proposal to the court, CC and my ex (the respondent) within 2 weeks. A court order arrived couple days later confirming this. The respondent has been given a month to review my proposal (aka witness statement) and then file her reply. Meanwhile CC have been instructed to carry out a section 7 report and we should expect to meet with them in the next 4 weeks.

 

The next hearing date has been confirmed (dispute resolution appointment) at which point the court should have both statements and the CC section 7. If agreement cannot be reached then there will be a final hearing.

 

My wife and I (wife is Aussie of course) have worked night and day on the statement and we had paid a Barrister a fair amount of money to review it before it was submitted. We were advised it was way too long and too detailed so we had some serious editing to do, but the final draft I am really happy with. The Barrister came up with some killer suggestions and edits.

 

For others reading this post who are perhaps in similar situation to mine, it is important to remember that very few LTR (leave to remove) cases are granted on lifestyle merits alone. In fact we barely mention the better lifestlyle in Auz. Our primary reason is that my with and her two kids (from previous marriage ) are Australians and they want to return home. There are other reasons given but this is out main reason.

 

Having now spent hours and hours reading case law, spoken numerous times to our Barrister and knowing what we know now from CC and the judge it is completely clear in my mind where my case is in the balance, I will re-phrase that, where the main argument will be, what the main decision the judge is going to have to make:

 

My two children have a poor relationship with their birth mother, however they have the right to a relationship wth her (should they wish to) - which i totally agree. However if the relationship is not strong enough, how can we expect it to survive such distances ? One of the cases I read, where the applicant was refused LTR was where the judge said in hid summing up "you cant hug skype". So in some way the fact that they dont see their mother (and are right now still refusing to see her face to face) may count against us?!!?!?!! If their relationship was better it would be better for us.

 

So we have spent an awful amount of effort on Contact Proposals once we are in Auz and have come up with what we think is a great legal argument. I cannot post it on here until the case is done and dusted obviously, but i think our contact proposals are really good.

 

Our case is complicated (CC said this before we went in to first hearing). Both my two children are clear they want to go and believe it would a great move for us all, but that might not be enough.

[LaddermanUS]

**UPDATE** So its been a few weeks since my last update. For those who dont have time to read the entire thread a quick recap :

 

I am a dad with two kids from previous marriage.

 

I left wife and took kids as ex partner was abusive, slept all day and awake all night, smoked copious amounts of grass in front of the kids and had a history of serious psychological issues which were effecting her ability to be a mother to out two young kids.

 

I have remarried, an Aussie, who has two kids of her own from previous marriage and we now have a baby together. So 5 kids in total, we all want to move to Australia.

 

My ex wife has not seen out children for two years. Has just started phone contact after me notifying her of out intention to go to oz.

 

Have been to first hearing, have submitted my witness stat and have my ex's reply in writing and caffcass interview completed.

 

 

So on with the update :

 

I submitted my witness stat ontime, my ex's was a week late! Whereas my stat was strictly professional and factual with no slating or slagging off of my ex, her's was a complete charactor assisination of me. 20 pages, with two paragraphs dedicated to her reasons why we shouldnt go - everything else was disputing the past and slagging me of. If you didn't know me and read the her report for the first time you would think I was the worst person in the world.

 

Anyway a few days after receiving that we had the cafcass interview at home. The officer visited my ex first then us. It was clear from the CC officers questions that she had bought the storey hook line and sinker. However there was some very worrying things bought up in the questions, namely that despite me already having a section 7 social services report carried out on me (at my request - which totally cleared me of any issues) the CC officer continued to ask me if I was abusive towards my ex, was i an aggressive person and a few other questions to accusations that had been levied at me (previously answered in social services reports).

 

You have to remember here that my ex is not asking for shared parenting, more time with the kids, in fact she isn't even saying she wants to take care of the kids (despite the fact that i sound like i am the worst husband and father on the planet from her report!). So why the CC officer is even bothering to ask me these questions has got my back up.

 

Having finished the 3 hour interview, which I feel I got all my points across, I was concerned on a few points, however we will wait to se the outcome of her report, what did surprise me was the weight to which she is going to put on the childrens points of view (8 and just over that). Don;t get me wrong both my children are desperate to go and still dont want to see their birth mother, however my boy is only 8, thats very young. Sure he's an intelligent little monkey, but still, young to have such an important decision put on him. The CC officer met with the kids very briefly when they came in at the end of the meeting and the CC officer openly said to them she has to do exactly as they tell her and that they are her their boss! It really gave my excited 8 year old boy a serious power-trip.

 

I guess what I am more angry about is the fact that two thirds or more of the interview was spent on the past and background and only half an hour discussing our contact proposals should we be granted leave to remove. The CC officer admitted not having read the previous social services report and admitted not having read all of my witness stat about my proposals to move abroad!!!

 

Anyway in the next few days my two children will be interviewed by CC and then within the next month we are back in for the second hearing. I'm very stressed about the outcome of the CC report because I know the Court will, more than likely, go with their recommendations and I feel like they have been given a lot of false info and have not read the previous social services report properly and I am worried they will not listen to my kids properly. Let's be honest, like many kids around 8, they say one thing one day and something else the next day. My families entire future relies solely on the thoughts of an 8 year old on that given day????? really? Right now im walking on tender hooks with my kids.

 

Look if the report goes my way ( or should i say is positive about my proposals ) then we are fine, I know that. But if it's neutral or negative Im going to be pretty angry because it will not be based on evidence or fact, it will be based on the CC officers 'opinion' of events. I can tell you now Im not having a factually incorrect report tabled in a Court of law without a bloody good fight.

 

Thus far I would say that there is more weight on the mothers side than on the fathers side, despite the mountain of evidence that I have effectivly been mother and father to our kids since a very young age (making all their meals, school runs, birthdays, hospital visits - and working from home 24/7 to pay for everything). It is being suggested that it's more important how the mother feels. I thought this was about the what the children wanted and what was best for them