One parent can apply for a British passport for a child, but in many other countries both parents have to make the application. Often that includes personally coming to the appointment. For foreign parents living in the UK this can be a serious problem. I have had many such enquiries. Recently a mother contacted me (details anonymised):
My daughter is 6 years old and I am from Spain. The father has not been involved in her life for 5 years and I do not know where he is. The Spanish embassy says he needs to come to make the application for the passport or I need a court order. Can you help?
Here is what you can do:
- Check if you can get a British passport instead without the other parent’s involvement. Your child may in fact be British already. Many people do not realise that. If the other parent is British, your child is probably also British. Even if you are both foreign, your child may be British or can be British depending on your immigration status. It is worth getting advice from a specialist immigration solicitor. This could be worthwhile, not only if you want to travel soon but also for your child’s ability to stay in the UK post Brexit or in their own right once they are an adult.
- The problem is that the English courts do not have a specific order in statute law that provides for this because it is not an issue for British nationals. However, specific issue orders can be made. Another problem is that the English courts have no power to direct a foreign state what to do. So the Spanish consulate may ignore an order by an English court telling it to issue a passport. Therefore, it is vital for the consulate to confirm what exactly the order should say, preferably providing a wording. Since this is unlikely to be the first time the consulate in London has come across this, they should really know what wording they have accepted in the past. If not, they should think about it and have a pre-printed wording to hand to parents. If they are unresponsive or just direct the parent to a solicitor, we can suggest a draft or alternative drafts for them to approve.
- As with any court proceedings, the party against whom you make an application has a right to be heard. Therefore, you must send a copy of your application to the court to the other parent. If, as in this case, you do not know where the father is because he has not been around for several years, the court will still expect you to try to find him. The court would only allow you to go on with the application without the other parent knowing about it if you have done everything that is reasonable to try to find the other parent without success and can show the court.
- It may be possible that you can make an application in your home country to the court for an order in relation to this issue. This may be straightforward and cheap and may even bind the consulate to act. The jurisdictional issue is perhaps a bit uncertain here: Generally in the EU the courts of the country where the child is habitually resident have the power to make decisions about the child. However, if one regards this as a decision about the sovereign powers of the state to issue passports, it may be that the courts of the home country have powers to deal with the issue. It is worth checking this with a lawyer in your home country.
Eine deutsche Mutter, die in England mit Kindern und deren Vater lebt, kann nicht so einfach nach Deutschland zurück ziehen.
Ich habe in den letzten Monaten in verschiedenen Foren Posts von deutschen Müttern gelesen, meist die wegen des Brexit, mit ihren Kindern nach Deutschland zurück ziehen wollen und wo der meist englische Vater hier in England bleibt. Das ist nicht so einfach, wie es vielleicht aussieht.
Wenn der Vater „parental responsibility“ hat, brauchen Sie die Genehmigung des Vaters, oder eine Genehmigung vom Gericht. „Parental responsibility“ haben Väter, die:
- mit der Mutter verheiratet sind oder waren, auch wenn sie erst nach der Geburt des betreffenden Kindes geheiratet haben;
- seit 1.12.2003 auf der englischen Geburtsurkunde eingetragen sind;
- mit der Mutter ein „parental responsibility agreement“ unterzeichnet und beim Gericht registriert haben;
- für die ein Gericht die „parental responsibility“ angeordnet hat oder
- die durch ausländisches Recht einen ähnlichen elterlichen Status haben (z.B. wenn Sie früher in Deutschland gelebt haben und da eine Sorgerechtserklärung vor einem Notar abgegeben haben – das gilt für alle EU Staaten und andere, für die das Haager Kinderschutzübereinkommen von 1993 gilt).
Hat der Vater „parental responsibility“, brauchen Sie seine Zustimmung. Dafür gibt es kein Formular und die kann auch mündlich erfolgen. Allerdings, kann es dann natürlich sehr schwer sein, dies später nachzuweisen. Wenn der Vater nicht zustimmt, muss das Gericht in England (oder Wales) dies genehmigen, sonst ist eine Umzug eine Kindesentführung. In solchen Fällen kann das Gericht in Deutschland auf Antrag des Vaters die Kinder nach England zurückschicken. Selbst, wenn das deutsche Gericht dies nicht tut, kann das englische Gericht nach EU-Recht eine Rückführung dann immer noch anordnen. Ob sich dieser Punkt nach dem Brexit ändert und wenn ja, dann ab 30.3.19 oder erst am Ende einer Übergangsperiode, kann noch nicht gesagt werden.
Was, wenn der Vater zustimmt?
Ich habe viele Fälle erlebt, in denen der Vater mal zustimmt, aber es nie so richtig sicher ist, ob das auch dabei bleibt. Hierzu müssen Sie beachten, dass eine Zustimmung, auch wenn sie schriftlich oder über Anwälte erfolgt, jederzeit (auch mündlich) widerrufen werden kann, und zwar, zumindest theoretisch, bis zu dem Zeitpunkt an dem die Kinder dann in Deutschland ihren gewöhnlichen Aufenthaltsort haben. Dies geschieht ja nicht gleich am Tag des Umzuges sondern irgendwann während der darauffolgenden Monate. Ob der gewöhnliche Aufenthaltsort dann in Deutschland ist, ist immer eine Frage der Sachlage. Das heißt, auch wenn Sie den Umzugswagen gebucht, Wohnung und Arbeit gekündigt und eine neue Stelle und Mietwohnung in Deutschland haben, kann noch ein paar Tage vor der Abreise, oder sogar nach der Ankunft in Deutschland der Vater sagen, dass er sich das anders überlegt hat.
Von der Seite des Vaters aus, will er natürlich weiterhin Kontakt zu den Kindern haben. Das kann auch Skype, Besuche, Ferien in England (oder auch am Mittelmeer) usw. beinhalten.
Damit beide Eltern abgesichert sind, empfehle ich in fast allen Fällen, dass sie sich anwaltlich beraten lassen und die Einigung dem Gericht vorlegen, sodass das Gericht dann eine Verfügung erlassen kann. Zumindest solange das Vereinigte Königreich noch in der EU ist, hat die Verfügung aus England in München den selben Status wie eine Verfügung aus Düsseldorf. Das sichert den Vater ab. Die Mutter hat dann eine Erlaubnis des Gerichtes, dass sie mit den Kindern nach Deutschland ziehen darf und die kann der Papa nicht einfach so widerrufen. Zwar könnte er einen Antrag vor Gericht stellen, dass die Erlaubnis zurückgezogen werden soll, aber dazu braucht er Gründe.
Zulange sollten Sie allerdings dann mit dem Umzug nicht warten. Wenn sich die Umstände tatsächlich ändern, kann das Gericht sich die Situation auch noch mal anders überlegen, wie in dem Fall Re AR (A Child: Relocation)  EWHC 1346.
Was ich ausgeführt habe gilt natürlich auch für deutsche Väter, die mit den Kindern nach Deutschland ziehen wollen, und wo die Mutter hier in England bleibt. Für gleichgeschlechtliche Paare ist es etwas komplizierter herauszufinden, ob der andere überhaupt rechtlich Elternteil ist, und dann ob es „parental responsibility“ hat. Dazu mehr hier.
Die Ausführungen gelten zu England und Wales. Schottisches und Nordirisches Recht sind gegebenenfalls anders. Sie müssen sich örtlich beraten lassen.
I frequently get asked how children should share their time between their parents. More parents agree or demand from the other that they have equal time. I have seen numerous variations of how that is done in practice, for example:
- One week with each parent.
- 3 days with each parent in turn, or 4 days with each parent in turn.
- Week days in turn with each parent.
- Complicated schedules where over a two or three week period weekdays and weekends are evened out but there are frequent changes.
Any solution you agree must work for the children and must be practical depending on your work schedules. So alternate weekends make little sense to a parent who has to work every third weekend for example.
None of the above solutions seems satisfactory to me. A week with each parent means a child has to take all of their belongings and school kit with them each week and does not see the other parent for a long time. This may work where parents are still close and live close by and a child can nip over to the other house to get some stuff they may have forgotten, but could be a strain in other cases. All other suggestions seem very disruptive with children not knowing whether they are coming or going.
What seems to work for a lot of families, however, (assuming both parents work regular office hours or something close to that) is this system:
- Alternate weekends from Friday to either Sunday night or Monday to school/nursery. If this is to Monday that would be 3 nights in 14.
- The same weekdays with each parent in one chunk, i.e. Mondays and Tuesday with one and Wednesdays and Thursdays with the other parent. This means 2 nights a week or 4 nights a fortnight. Together with the weekends those are 7 nights a fortnight and exactly equal.
- Equal division of holidays.
The advantages of this system are:
- Weekends are alternating so parents can actually make plans and go away with the children overnight if they want, say to visit family or go to the seaside etc. Or they could just have a lie-in/pyjama morning lounging around of course.
- Most children have some after-school activities (sports or music lessons etc) and with this system the same activity will be with the same parent, e.g. “mum will always take me to football training on Tuesdays”. This also applies to the school timetable.
- Children seem to be able to remember which parent they have been with each weekend, so alternating weekends are a system they can follow. They also seem to be able to remember days of the week and so this system is something they can follow without having to consult a calendar or having an adult tell them. They can make plans, such as inviting a friend around to play (or for revision) Thursday next week without having to think where that would be or who they would need to ask.
- There are only two handovers each week and they can, if necessary be through the school or nursery so parents do not have to meet, which can help if this has been a problem in the past.
- A child will spend at most 2 nights plus a weekend (5 nights) with one parent, so is not away from the other for longer than that.
So it’s a system that’s easy to follow for children and allows whole weekends with each parent.
Even in cases where there is no insistence on equal division, this system can work in a modified form, i.e.
- Alternate weekends from Friday to Sunday night with each parent
- Thursday night with one parent, the rest with the other.
This means that each alternate weekend the child is with the other parent from Thursday to Sunday night. This system could later move to the one I described above in a way that seems very natural for the child.
I have had several callers yesterday with essentially the same issue: the other parent is not agreeing to or not sticking to a clear schedule for time they spend with the child. In those cases I can either act for the parent, take detailed instructions and then correspond, all of which costs you money; or I can give generic advice. So I thought I would set out the basic generic advice here for everyone to read. Let’s take an anonymised example of a heterosexual couple where a young child, still a baby, lives with the mother. The same advice applies to same-sex couples, co-parents etc. The father will not agree to clear times, or although they have been agreed, does not turn up, or turns up at other times. He says that if the mother will not let him have contact on his terms, he will go to court. In any event, he will not pay maintenance if she won’t let him have his time with the child and he is entitled to 50/50 anyway.
Now, I only ever hear one side of the story, so there may be a lot more to it. However, there is a suspicion here that the father is using the contact and child maintenance as a way to exert power and coercive control, which is a form of abuse. It is often very difficult to prove that later in court because the abuser may come across as perfectly reasonable and claims that he is the one who has always made reasonable requests that have been unreasonably denied. Constant changing and arguing can also be grinding and stressful (and that may well be the intent). To avoid the stress and be able to have a case later in court if the matter comes to court, I advise the following:
- Communicate in writing (letter or email, but not texts, messenger etc.) about the proposals. Be clear and concise about what you suggest and why. Do not go into the history and make no reproaches; be practical and constructive. Suggest a contact regime that works for you, your child and that you think works for the father. Say that if it does not work for him, he tell you why it does not and can make alternative suggestions. Ask him to respond by email only. If he rings or texts etc. tell him you would prefer not to discuss this and that instead he should respond by email. This way, you can later if necessary show that you made reasonable suggestions early on.
- If you find it difficult to see if your proposals would work for him, ask a friend who is a parent of a child of similar age. Don’t be stingy when making your proposals, but do not be over-accommodating (e.g. there is no need to suggest that the father can use your home for contact if he is perfectly able to take the child to his home instead – this may be different if he lives 200 miles away).
- Consider any alternative proposals that he suggests and be prepared to accept them if they work; but give reasons if they do not work.
- Keep a diary (cheap paper diary, or an electronic document) which you update with all agreed contact and what times the father turns up, returns the child etc. You can also include any other issues, communication, telephone calls etc. in that diary. Just use bullet points and do not write whole pages of narrative. Such a record will give you the ability to show later on whether or not the father stuck to the agreement. I have often seen parents who claim they did, but could then be shown up. A paper version may look better with judges as a contemporaneous note, but if an electronic version works best for you, use that. Make sure you update it in real time and not a month later when you can hardly remember what happened. I would also use a document or diary which you do not use for anything else so that you can show a print out or copy to the other parent or the court.
- Ignore threats, in particular of “50/50 access” when that is practically fanciful (e.g. the father is not sticking to contact because in addition to his full-time job he is doing overtime).
- Be prepared to adjust the regime as the child gets older and their circumstances and needs change or if either of your circumstances and needs change (e.g. you stop breastfeeding regularly; the child starts swimming lessons etc.).
- If maintenance is not regularly paid by standing order at the rate it should be paid, write to ask for copies of his P60 and recent pay slips within 14 days. If you get them, use the online calculator to work out how much maintenance he should be paying. If it is not forthcoming, send a reminder with a clear deadline (say 7 days, taking account of any holidays etc.) and if that is not forthcoming make an application to the Child Maintenance Service. If you are able to calculate the rate and agree, insist it is paid by standing order each month the day after his salary comes in. If not, apply to the CMS.
These points should help in most cases. If you have any other ideas, tweet me.
A cohabiting couple had a child through surrogacy but separated during the pregnancy and the intended father no longer wanted to apply for a parental order.
In a recent case, anonymised as M v F & SM (Human Fertilisation and Embryology Act 2008)  EWHC 2176 (Fam), a cohabiting different-sex couple where the woman could not carry the child found a friend to be their surrogate. Both the intended mother and the intended father were the genetic parents. However, during the pregnancy the couple separated and the intended father no longer wanted anything to do with the child and did not join the intended mother in the application for the parental order. The surrogate handed the child to the intended mother shortly after birth, but the intended mother could not on her own apply for a parental order alone because only couples can apply. The legal parents were the surrogate and the intended father (presumably the surrogate was single). To allow the intended mother to exercise parental responsibility on her own, the court made the child a ward of court and made other order regulating the upbringing until the law is changed (later in 2017 or in 2018) to allow single parents to apply for parental orders.
What does not seem to be discussed in this case is, however, that here a single woman is finding herself bringing up a baby without the help of her former partner (as they planned). Presumably while he is the legal father, she can apply to the CMS and the courts for child maintenance and financial provision. However, once a parental order is made, she will be the only legal parent and will have no financial help from the intended father.
This sits in contrast to a case where a couple undergo IVF, for instance, with donor sperm. Even if they split up during the pregnancy, the mother’s partner and legal father will be financially liable for the child even if he wants nothing more to do with the child. This is although he has no genetic connection with the child. This is of course the same as in any case where a woman gets naturally pregnant from a man even if that is a “one-night stand”.
In jurisdictions where a surrogacy agreement is binding and creates the legal paternity, both intended parents would be the legal parents from birth. In such a jurisdiction the mother in this case would have recourse to financial provision from the intended father. So while parental orders for single intended parents will be welcome, they still leave a mother like the one in this case financially vulnerable.
I have over the years had enquiries from several lesbian couples who were planning to attempt to conceive both at the same time to have children. One reason given was that they both wanted a close physical bond with a child. While most people who have had twins will say that the first three years are extremely hard, that is one choice for two women in a relationship to experience a close physical mother-child relationship.
Another way, which I had not thought of until I came across Breastfeeding Without Birthing by Alyssa Schnell, is for the co-mother (the mother who did not birth the child) in a same-sex female couple to co-nurse, whether or not she has a (full) milk supply.
I talked about Alyssa’s work in another blog post about intended mothers who have children through surrogacy and breastfeed them. In episode 15 of Breastfeeding Outside the Box podcasts, Alyssa talks to Rachel Gazda and Talana Keister about their experience of co-nursing their daughter as co-mothers. I love the options this creates for parenting, not least because I have in my practice come across a number of same-sex female couples where for medical reasons they choose for the younger partner to carry the children but the older was then the one who stopped gainful employment or went part time to care for the children.
I was not aware that women could breastfeed without giving birth until I came across Alyssa Schnell’s book Breastfeeding Without Birthing. The book is available in the UK on Amazon. Alyssa describes how any woman can try to induce lactation (through breastfeeding, manual stimulation, pumping and/or herbs and medication) and breastfeed a baby. Not every woman will produce the full amount of milk a baby needs, but Alyssa encourages breastfeeding for the benefit of nursing and the bond it creates irrespective of the milk supply produced. She gives tips and instructions how to supplement the breast milk supply. The book is full of practical tips and instructions. Alyssa is an International Board Certified Lactation Consultant (IBCLC) working in St Louis, Missouri, USA. She induced lactation when she adopted her daughter after earlier having given birth to her elder children.
This book is now accompanied by a series of podcasts Breastfeeding Outside the Box where Alyssa Schnell and Hope Lien talk about the experiences of different parents who breastfeed their children other than in the obvious conventional way, including those who have breastfed without birthing. Hope is a lactation counsellor, also in the US, and between them they are putting together a series of interesting episodes.
What is interesting for the work I do is that women who adopt a child or have a child through surrogacy can in fact breastfeed their child if they choose to do so. Not only is this a way to provide the baby with breast milk, which the WHO recommends as the healthier way to feed a child (as opposed to processed formula), but it can also deepen the physical bond between intended mother and child. In episode 13 of the podcasts Hope talks to an intended mother who breastfeeds her child through surrogacy.
The book and the podcasts also deal with relactation or inducing lactation to nurse an older baby, so it is not too late to think about nursing even if you did not think about this before the birth. Find the Breastfeeding Outside the Box podcasts on your podcast app, download them and listen to them when you drive or in the gym or on the tube. I highly recommend them!
I recently had this enquiry:
My spouse and I have a three-year-old son. We are both registered as parents on his birth certificate. We live with a very close friend, Jamie, who has taken an active role in parenting our son throughout his life since he was very small.
Jamie is so involved in our son’s life that their role has effectively become that of a third parent, and we want the official state of affairs to reflect this. We want to give Jamie parental responsibility, and should my spouse and I both die, for example, we would want Jamie to have all the rights of a parent in making decisions about our son.
[I have changed names and otherwise anonymised the post to protect the enquirer’s privacy]
Now the email was entirely gender-neutral: I did not know whether Sarah was married to a man or a woman, nor did the name of their friend give me a definitive indication of their gender, nor whether any of the adults were cis- or trans-gendered. In fact it would make no difference to my answer, which was as follows:
Thank you for your email.
There are two distinct things you want to look at:
1. Parental responsibility and
The only way to give parental responsibility to someone who is not a parent (nor step-parent) of the child is by way of a child arrangements order that provides that the child will live with that person. In your case because your son is living with all of you, the child arrangements order would provide that your son lives with you, your spouse and Jamie.
To get that order, Jamie would need to make an application to the court on form C100. They would not need permission from the court because you and your spouse agree. At the FHDRA you would explain the situation to the judge. It is up to the court then whether to grant the order, refuse it or give further directions (such as for a Cafcass report) and adjourn the matter to another hearing.
You may feel that you can represent yourselves, but we can represent you if you wish.
Please note that you could not unilaterally revoke this order nor the parental responsibility and you would need to get another court order either to terminate the original order or to make another child arrangements order that provides who your son would be living with.
This provides for someone to have parental responsibility if the child’s parents were to die. It only comes into affect on death, so you can change it any time before then. It needs to be made in writing and signed and dated. It is often made as part of a will. If you already have a will, all you would need to do is to write the following, date and sign it:
I, xxx hereby appoint xxx of xxx to be the guardian(s) of any of my children who are under the age of eighteen at the date of my death.
A guardian appointment only takes effect once both parents have died unless the deceased parent had a child arrangements order in place that provided the child lives with them. So in your case if you have no child arrangements order (see above), Jamie would only become a guardian of your son if you were both going to die. However, if you do have a child arrangements order providing Jamie lives with all three of you, the appointment of a guardian would be effective if one of you were to die (provided you both appoint Jamie as the guardian). You should get individual advice on your own situation and in particular you would consider wording the appointment of a guardian so that it will only be effective if both of you were going to die even if there is a child arrangements order that your son lives with both of you.
The UK and in particular London has an international and cosmopolitan population, with many bi-national couples, not least due to free movement of citizens in the EU. On separation and divorce issues sometimes arise when one parent wants to move back to their home country with the child and the other parent does not agree. In those cases the court will need to decide on the relocation application, often called leave to remove the child out of the jurisdiction.
I have had enquiries in recent weeks from parents who are thinking over their future and their children’s futures after the Brexit referendum outcome in June 2016. Some wonder how long they can stay living in England and Wales and want to move now because they fear they may have to leave in a couple of years. Others want to move abroad with their children now, so that their children can experience an international upbringing while this is still possible in the EU.
Most strikingly, Sterling dropped against the Euro by 20% as against the exchange rate at the end of 2015. The effect on property prices in the UK remains to be seen. There are issues which can make practical arrangement in relocation cases easier or more difficult as a result of the referendum outcome and, if and when it happens, Brexit, including:
- The Sterling fares for flights and Eurostar trips are likely to increase, either because the company bases their fares in Euros and/or because fuel is based in US Dollar.
- Buying property in Europe will be more expensive for UK migrants as a result of the drop in Sterling.
- Maintenance payments for children paid from the UK will not go as far in Europe as they used to only a few weeks ago.
- It may not be clear if British Citizens will be able to stay abroad post-Brexit and if so in what circumstances. Equally, EU citizens in Britain may not be able to stay here and should consider their situation now – either by applying for permanent residence and/or citizenship or by considering when is the best time for their child to move countries.
- UK citizens and EU citizens moving back to their own country may not be able to use the EHIC card to obtain free or subsidised health care abroad and may need to take out private health insurance from the start post-Brexit, something that makes emigrating to the US expensive.
So while there are a lot of uncertainties and issues to come if and when the UK leaves the EU, some parents may want to consider their situation now and obtain legal advice to find the best way to face what may happen head on.
I recently got asked about schedules of deficiencies and supplemental questionnaires by someone acting in person who had a long questionnaire to answer and was worried he had not asked enough questions himself.
I often see solicitors and barristers in financial cases drafting very extensive questionnaires including questions which are not necessary to decide the case. My view is that this is motivated by lawyers being over-cautious to protect themselves.
The questions should all be relevant to the issues, so it is best to look at and/or draft the Statement of Issues first. Questions could arise out of
- the Form E itself (when information is missing, such as a pension valuation) or
- arise later from a response to a question or from a reply to a question in the Form E, for example when a response to how much last year’s bonus was is that it came to (unexpectedly high) £50,000 and then the question arises what happened to the money.
The questions I come across can, perhaps, be put in 3 categories:
- Issues which the other person must know for their case, for example if the Form E simply says that someone has private pension, but no valuation is provided.
- Issues which the other person does not need to know but would like to know as it may help them to present the case, such as the income of the new partner when there is no suggestion that the new partner will pay maintenance or that the other person’s own income is insufficient to meet their own outgoings, or if the case is clearly not a maintenance case because both spouses have similar income. In this category are also questions which are there simply to retaliate, so it may be necessary to look at one party’s credit card statements to see how they have spent large amounts each month, while the other party’s spending is not in issue, but the question will find itself onto the other questionnaire, often as an addition on the day of the first directions appointment. These should not be allowed, but often unfortunately are.
- Issues which the questioner would rather remain obscured, such as if in the Form E someone says they owe £5,000 to their brother. In that case the other person may ask for proof to give the person alleging the debt the opportunity to provide that and if they do not, then they can ask the court to disregard the debt as at best a soft loan. They ask the question so that they can make the argument later on. This is legitimate.
Sometimes people ask questions which are:
- Issues for directions, such as the valuation of a property, for which the court usually directs that the parties either agree the value after getting estate agents appraisals or if they cannot agree, instruct an independent valuer.
- Issues for cross-examination, for example: “Why have you still not found a job when you had a year to find one?”
The court should disallow such questions, but often allows them. Nobody will get points at the final hearing for having asked more questions and the judge probably will not read the questions and answers, which are often then irrelevant or are at best difficult to follow. The judge would normally only look at a question and answer if an issue was not agreed.
If after the first appointment you think there are issues which you forgot to ask and could have asked, first check whether the court will need to know the answer to decide any of the issues, which the parties have identified in their statement of issues at the first appointment. If so, you should then consider if the answer is already there or if you can provide it in another way. For example, if a party claims that they cannot possibility find a suitable property in an area which is convenient for the children’s school for £100,000 less than the family home is now worth, you could do your own research and provide particulars of properties for the court. If you view them and see why they are suitable (and include perhaps a couple which are not), that shows you have researched this thoroughly. Rather than ambushing the other party at the final hearing, however, you should then send the particulars to them or their solicitor and ask them to agree that these properties are suitable and, if not, state why not and provide particulars of properties which are suitable.
If the issue is in category 3 above, that could also be addressed in correspondence with a clear warning that the letter will be referred to at the final hearing and that you will submit that the court should disregard the debt to the brother (or as the case may be) unless proof is provided of the terms etc.
You should only make an application to the court for permission to adduce further questions if you are confident that you can explain that they are absolutely vital. If that is the case, you should write to the other party’s solicitors first setting out the question or questions and why they are vital and ask for the question to be answered voluntarily. Set a deadline for them to confirm it will be answered (say 7 days) and for an answer (day 21 days) and state that you will be making an urgent application to the court if there is no positive response. You could then ask the court to consider the issue in writing and attach the correspondence.
Unfortunately each case is very different, so I cannot say what applies in any particular case without considering the documents and taking full instructions.
If you want to make an appointment, get in touch.