family matter - residency/contact etc etc Scots or English law?

[Leslaki]

Hi. Having some more problems with XH yet again who is currently in breach of 4 court orders made in an English County Court. he is refusing to pay maintenance and yet still demands for me to bring the DC to see him. He forced me and the DC to leave England then took me to court under a PSO to stop us returning to scotland. The magistrates agreed a contact order which I am unable to stick to at the moment (I complied in October t my expense although still no maintenance and do encourage contact between my DC ad their dad). DC do NOT want to spend Xmas ith their dad due to his nightmare of a GF, I can't afford ot take them down, they are at school until 23/12 and when we were last in court (he failed to attend again) the Judge (English court) told me I didn't ahve to comply as he was making it impossible for me to comply with th order. Anyway have just informed XH of this after hundreds of abusinve texts. Now he has contacted the school demanding that they be excused, he is also planning to go after me toget residency, is going to court and has threatened to report me to the police if I ever take the DC out of the country for a holiday - he will say I've kidnapped them. My DD (7) is refusing to go over Xmas - she ash threatened to run away etc etc - we ahve a CAFCASS report stating domestic violence int eh form of threats, emotional and psychological abuse from her. DC are OK to go for a few days after Xmas (and I have told him this and said I would facilitate it) but not before. I am also worried about the weather as we have horrendous snow which is meant ot last over Xmas. What I need to know is that given I have permission from a judge, am I OK and if I apply for residency (DC have always lived with me - he left 3 years ago but has never been particularly involved in their lives - current desire to see kids is just to annoy me - he doesn't want to see tham after Xmas!!) will I automatically get it or can he stop it? And, should I go through English or Scottish courts to get it? Thanks and sorry for going on & on!!

[JuJusDad]

Hi. Having some more problems with XH yet again who is currently in breach of 4 court orders made in an English County Court.

He is refusing to pay maintenance and yet still demands for me to bring the DC to see him. He forced me and the DC to leave England then took me to court under a PSO to stop us returning to scotland.

The magistrates agreed a contact order which I am unable to stick to at the moment (I complied in October t my expense although still no maintenance and do encourage contact between my DC ad their dad).

DC do NOT want to spend Xmas ith their dad due to his nightmare of a GF, I can't afford ot take them down, they are at school until 23/12 and when we were last in court (he failed to attend again) the Judge (English court) told me I didn't ahve to comply as he was making it impossible for me to comply with th order.

Anyway have just informed XH of this after hundreds of abusinve texts. Now he has contacted the school demanding that they be excused, he is also planning to go after me toget residency, is going to court and has threatened to report me to the police if I ever take the DC out of the country for a holiday - he will say I've kidnapped them.

My DD (7) is refusing to go over Xmas - she ash threatened to run away etc etc - we ahve a CAFCASS report stating domestic violence int eh form of threats, emotional and psychological abuse from her.

DC are OK to go for a few days after Xmas (and I have told him this and said I would facilitate it) but not before. I am also worried about the weather as we have horrendous snow which is meant ot last over Xmas.

What I need to know is that given I have permission from a judge, am I OK and if I apply for residency (DC have always lived with me - he left 3 years ago but has never been particularly involved in their lives - current desire to see kids is just to annoy me - he doesn't want to see tham after Xmas!!) will I automatically get it or can he stop it?

And, should I go through English or Scottish courts to get it? Thanks and sorry for going on & on!!

Sorry, had to do that to make it more readable for replies. Gimme a minute and I'll do proper reply

[Spero]

Sorry I am confused. I assume you are in Scotland?

If an English court has made orders and the case hasn't finished, then the English court has jurisdiction.

But if final orders have been made in the English proceedings, presumably you can just apply again in Scotland as that is where the children are habitually resident?

I am not sure what you mean by judge giving you 'permission' - if he didn't vary or discharge the court order, it stands and you should obey it until it is varied or discharged.

[JuJusDad]

Right.

I'm guessing you're in England, so I'd say go through English courts. Though I have no idea what system is in Scotland.

If he wants to go through Scottish courts to get more contact but is unwilling to facilitate said contact, there's not much you can do about that.

Kidnap. Pretty hard to do if you have residency, even if he has PR. Yes, you should apply to have residency - that would settle things on that score.

Furthermore, he'd be hard pushed to actually get residency with the way he's been acting. Sure, he can cite parental alienation, but if you can show that you've done your best to facilitate contact, remained as reasonable as possible whilst he's been an abusive arse, then you should be ok.

I would suggest you find a way of downloading his texts to pc for future presentation to court. I would also suggest you speak to WA or similar to find ways to deal with communication with him - they may also give you advice about your situation.

Finally, maintenance is never part of contact in English law (iyswim), although it sounds like you would have an argument to state that his lack of maintenance impacts on your ability to facilitate contact.

HTH

[Resolution]

Jujusdad - I think she's in Scotland.

The question of which court has jurisdiction is complicated. I'm afraid I haven't a spare hour to research it for you. A case I'm involved in concerns a Greek child living here where there are Greek proceedings that have never ended since the child came to live here. There is some provision that if the Greek (or any foreign) court is not seized with the case for a period of time (I think either 3 or 6 months) then the UK courts can take over jurisdiction. Sorry, but I don't know how that would work as between English and Scottish courts.

You need to take advice from a Scottish solicitor.

[STIDW]

I know how you feel about the snow, I finally managed to get my car out yesterday after 11 days and the buses still aren't running. Just stocked up as more cold weather is forecast next week. :)

How long have the children lived in Scotland? You really want to avoid a battle about jurisdiction if you can. The question of jurisdiction between Scotland and England is even more complicated than between other countries. Legal advisors/courts on opposite sides of the border often have differing views on the matter. Scotland has legal independence but is still part of the state of the UK. It can be complicated, time consuming and expensive.

The other thing to bear in mind is that in Scotland there is no CAFCASS and if the court requires welfare reports they are usually carried out by independent social workers or specially trained lawyers. They are paid a fee in much the same way as solicitors.

[makemineapinot]

Thank you for your replies and so sorry about the bad state of my OP - was trying to type surreptitiously at work . I am in Scotland - he's in England. So, I take it I should got and get a residency order as soon as poss in Scotland and still continue to fight for maintenance etc through the English courts? he is being a real arse and has had me down in court once a month on average since we moved in August!! So determined not to pay but expects me to comply with his demands. DS keeps asking why doesn't he come and visit them here as they have to do all the travelling (EXH works in Scotland a few days a week FGS!!! and DC are aware of this) Kids have been residents in Scotland since Aug. Head tecaher has been great and backed me up. It's all so very messy and so stressful. (name change BTW - I am the OP!!)
STIDW - does that mean that the CAFCASS report won't stand in a Scottish court - don't want DC to go through that again.
JujusDad - thank you - I ahve WA's number for the local office - ahve thought about phoning them before but I've 'escaped' from him (distance wise) and I felt a bit guilty about going to see them when I'm safe IYKWIM. Might give them a ring - even if it's just to find a good solicitor here. Thank you!!

[STIDW]

To avoid any doubt I'm not a solicitor and you really need to seek an opinion from a family solicitor in Scotland as to where you stand and what options there are given all the particular facts of your case.

Scottish courts are fiercely independent and often reject documents and reports because they are deemed not to meet the standard required by the Scottish courts.

There was a case (Carroll v Carroll) where the sheriff principal upheld that the jurisdiction of the courts in Scotland was excluded because a child's habitual residence was deemed to be retained within England for a year as an English court had been actively engaged in matters concerning the child.

[Spero]

I think you will have to see a solicitor in Scotland and talk through your options.

It does sound like the English court has jurisdiction at the moment but that won't make sense in the long term if your children are permanently based in Scotland.

The issue of maintenance will not have anything to do with English courts unless you are applying for a lump sum under the Children Act or you are saying that he should pay more than his CSA/CMEC (I have lost track of what is going on now with Child support) assessment as he is earning loads??

The principle is that contact/residence issues should be kept separate from maintenance issues and the courts usually don't want to get invovled.

Sorry to not offer more concrete advice, but given the jurisdictional problems I think you need to get proper advice now from a Scottish family lawyer.

[makemineapinot]

Thanks - have got the number of 2 family lawyers in Scotalnd both been recommended so going to phone them in the morning. Thank you all for your help.

[CarGirl]

money and contact don't bear any relationship to each other.

Apart from that good luck your ex sounds horrendous.

[makemineapinot]

I know, unfortunately the lack of maintenance and responsibility towards his children doesn't seem to matter. The CAFCASS report stating DV against my children at the hands of his GF (verbal, emotional and psychological DV not physical) doesn't seem to matter!! Insane.

Just spoken to a Scottish lawyer she says I need to aply to vary the order in England and then get the proceedings remitted to Scotland so fingers crossed for the sake of my DC.