The cans, the haves and the shoulds!
People often mistake what they can do, with what they have to do, with what they should do.
For example, I can have another glass of wine, but I don’t have to have another glass of wine and perhaps I should have stopped before the last glass of wine, but if I don’t have to do any work this afternoon and if I’m not driving anywhere or responsible for young children, does it really matter? Probably not.
Take my recent discussion with a desperate young mother, at home with her children and an abusive husband. She tells him that if he doesn’t stop drinking, she’ll leave him and take the children. He says she can’t take the children because he has joint parental responsibility and he doesn’t agree. So she can leave, but she can’t take the kids.
The reality is that she can leave and take the kids. Equally (although much less likely) he can leave and take the kids. If she waits until he’s at work (or asleep in a drunken stupor!) and she packs up and leaves and goes to stay with family, then she has done nothing wrong provided she doesn’t leave the country or do anything to unreasonably prevent him from seeing the children. Unless there is a court order in place that says otherwise, she is not breaking the law. Whoever has physical possession of the children at that moment can leave, even if the other hasn’t agreed or even if they expressly say that it should not happen. If the father doesn’t agree, he will have to issue an application to the Court for an order that they be returned, which he’s unlikely to get, although it will depend on the circumstances.
However, just because she can leave, doesn’t mean she necessarily should. If she can show, for example, that she and/or the children were in danger, then that would probably give her justification for an order that makes him leave the property and prevents him from returning. If she does leave, she should take reasonable steps to ensure she doesn’t go too far away without good reason and she should allow the father regular access if it is safe to do so, (or at least trying to work with him) to agree on access arrangements. In those kinds of scenarios, if we do end up in front of a judge, it is much less likely that she would be criticised or have any adverse order made against her.
Where things can become difficult is where he is allowed time with the children, but then doesn’t return them, even if he had agreed that he would. In that scenario, he would argue that he was the one in physical possession and so can keep them until a court orders otherwise. So if either side feels vulnerable, they can request that a consent order be drawn up, which would be sealed by the court. If the other side then breached that order by failing or refusing to return the children, the police could be called to enforce it.
If all else fails, court proceedings should be issued, for a Judge to make a decision as to who the children should live with. Shared parental responsibility does not necessarily mean that there is also shared physical responsibility. The children can live with one parent the majority of the time, particular if the other works or is a long distance away.
We’re running a drop in clinic for people who don’t know what to do next in terms of child access and what they could, should and might do. Drop us a line at Stephanie@kleymansolictors.com if you’d like to drop in for a chat.
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