Solicitors in Birmingham

How can I stop my ex seeing the children ?

The legal starting point is that children should know both parents and extended family.  Consequently, ther need to be compelling reasons for a court to order that there be no contact and this would generally be  last resort. There can be restrictions placed on contact such as :-

• the period of time spent with a parent could be restricted

• An Order be made that the child or children are accompanied on contact visits

• Contact may be limited to simply letters, cards or presents

It is also worth noting that before making the type of restrictive orders described above, a court would make detailed enquiries including hearing from both parents and the requirement for an independent opinion from a CAFCASS officer who will also meet  the parents and the children, possibly separately if over the age of 9.

It is often difficult for a parent to trust the other parent after a difficult breakdown in their relationship. Sometimes that can spill over into the arrangements for the children.

What is a constructive trust ?

A trust arises where one person (a trustee) looks after some property on behalf of another person (a beneficiary).

A constructive trust is similar to a trust but arises not because the parties created it but because a court orders it because it considers it is the right and just thing to do given the evidence before them.

This is why constructive trusts cannot be regarded as ‘true trusts’ in the sense that a trustee manages the trust for the benefit of the beneficiaries.

For a constructive trust to arise one person must unjustly benefit from another’s act.

The typical way in which a trust could arise is if a person has unjustly been deprived of their rights by someone else who has obtained a legal right over their property. We appreciate that this sounds complicated so it is best to give an example to explain this.

Example of a Constructive Trust

Rachel and Steve are an unmarried couple who lived together in a house for many years. The property is in Steve’s sole name, as his partner Rachel moved in after he had purchased the property. He was a dedicated career man and despite Rachel having two children, did not take more than a week off. Rachel was a part-time artist and was on a low-income but was content to be the main carer of the children and channelled all her money for the family’s benefit.

The end of the relationship

Each day Rachel did the trips to and from school, cleaned the house, went to all the children’s school events, cooked meals and generally supported Steve while his career became stronger and stronger. One day, after New Year’s, Steve told Rachel that he was having an affair and wanted to leave the house. Rachel was very distressed but moved out anyway and booked an appointment to see her solicitor in the first instance. She was advised to stay in the property as she had equitable rights in the property that Steve held on trust for her. So Rachel stayed.

What Rachel Did

If Steve were to move his new girlfriend in things would have become very complicated. Rachel continued to try to preserve her constructive right in the house by continuing to live there and look after the children. Rachel managed to get a job which provided a good salary. Steve became increasingly annoyed at having to share the home with Rachel and he moved in with his new partner and Rachel bought his share of the home. The foundations of a resulting trust were built by Rachel because she had been contributing to the family’s income and bringing up the children which led to the courts completing the foundations with a roof by interpreting the existence of the trust. So while Rachel’s name was not on the original title deeds, she was still able to assert her right to claim a proportion of the family home.

If the case had gone to court

If Steve had refused to leave the house it may have been necessary for Rachel to have taken the claim to court. Rachel’s lawyer would have provided the court with the evidence of a constructive trust and order that Steve pay him the amount due to him for his share of the family home.

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