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What Rights Does My Ex Have With Regards to Our Children?

By: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 28 Apr 2016 |
 
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We get many comments and questions from you about child support. We've taken a selection of your comments addressing the issue of keeping contact with your children and the fear of your ex taking them from you - and asked our expert to give some comprehensive information and advice.

The traditional view of the family set up has become something of a minority in 21st century society and because of this, a broken down relationship can lead to complicated legal issues. Whether you are recently divorced and wondering about the role your ex-husband has in your child's life, or you have a child from a relationship that has broken down, but were never married, you need to understand your legal position when it comes to creating an amicable situation for your child to grow up in. Here we aim to dispel some of the myths about parental access and to give you the advice you need to rebuild your life and your children's lives.

Parental Responsibility

Parental responsibility (also known as PR) creates "responsibilities" rather than "rights" regardless of whatever the state of the parents' relationship, emphasising the view that each will maintain an equal, shared and continuing responsibility towards the child.

Where both the mother and the father have PR, they have the power to act alone unless there is a circumstance where, by law, each person with PR is to give consent i.e. in the case of adoption. In reality, holding PR gives the ability to make decisions in relation to the child's name, religion, school, consent to medical treatment and marriage etc.

Who has Parental Responsibility?

Below is a flow chart to help you determine if you have Parental Responsibility:

A mother always has PR. A father who is married to the mother at the time of birth will automatically have PR.

To clarify, for unmarried fathers, the situation is different. Unmarried fathers will have PR if:

  • They marry the mother after the child is born
  • They have jointly registered the child's birth with the mother i.e. their name is on the birth certificate
  • For pre December 2003 registrations, the mother provides a formal declaration of agreement that the father's name is to be added to the birth record and the father re-registers the birth to add his details
  • The court orders a residence order in favour of the father, although this will usually terminate when the resident order ends (generally age 16)
  • A birth parent has signed a parental responsibility agreement
  • A step-parent's PR agreement can be made by consent with all those already having PR for the child
  • By obtaining an adoption order from the court

Where a father has not automatically gained PR, the mother does not have to add the father's name to the birth certificate. However, this will not stop the father from being able to apply to the court for an order, such as a parental responsibility order, which may result in him acquiring PR.

Other family members

Other family members, taking grandparents as an example, do not automatically have PR. They would only be granted PR by a court if, for example, they were appointed as Guardian or were to adopt their grandchild for any reason. If a father with PR asks his parents to take care of the child, they can do so usually without the mother's agreement. However, the child would not be able to remain resident with the grandparents unless they had been granted a residency order by the court.

Voluntary access arrangements

If more than one of you has PR, then the best thing you can do for both your children and yourselves is to voluntarily agree to contact and access etc. If you can do this, then you are more likely to maintain a more harmonious relationship for the sake of your children. Additionally, it will prevent you from having to go to court and from having to pay court and solicitor's fees if you are unable to get legal aid.

Of course, this is the ideal scenario and not always a realistic one. If you cannot agree on residence and contact etc. then you may find that your ex will end up applying to the court for an order.

My Child has Been Taken Away From Me: What Can I Do?

Unfortunately in some circumstances, a father may take your child during agreed contact time and then refuse to bring them home again. If this happens and you are unable to negotiate with the father then you should call the police. However, the police may not be able to do anything. This generally comes down to whether or not the father has PR. If they do not, then the child is the mother's sole responsibility and the police may be able to take the child back to the mother. If the father does have PR, then in usual circumstances, they have the same rights as the mother to look after the child and therefore, so long as the child is not in any harm, the police cannot usually do anything about it. This can be understandably distressing for a mother. What can be done about it?

Residence Orders

A person can make an application for a residence order, whether or not they have PR. For example, a father without PR can make an application for and be granted residency but then he will automatically acquire PR at the same time. It is unusual for a father to be granted residency as well as a mother as this would result in shared residency, which is not always in the best interests of the child. As a result, it is usually the mother who would be granted sole residency.

If a child has been taken by their father and the police cannot do anything, the mother can make an application for a residency order. If the child was snatched or she believes that her child may be in danger, then she can apply for an emergency ex parte application. This is also known as a 'without notice application' i.e. the other party is not given notice of the application. If the mother cannot make an ex parte application then an application can still be made but the father can attend and make his case. At the end of the hearing, the judge will make an order.

There are lots of other orders which the court can make, including contact orders, prohibited steps orders and specific issue orders.

What Factors Will be Taken Into Account?

When reviewing applications, the court will take a number of factors into consideration with regards to the child or children's welfare. These are:

  1. What is best for the child and the feelings and wishes of the child. This is considered according to the child's age and understanding
  2. How capable the parents (and any other relevant people) are of meeting the needs of the child or children
  3. Any harm that the child is at risk of suffering or has suffered
  4. The likely effect of a change of circumstances on the child
  5. The age, background, personality, sex and any other characteristics that the Court believes to be relevant
  6. The child's emotional, physical and educational needs

Domestic abuse

If you have been subjected to domestic abuse, this would clearly be a very important factor for the court to consider when determining what will be in the best interests of the child. If the father makes an application to the court then you can oppose it by giving evidence as to why he should not be given the order. You can oppose any application in much the same way.

Reality Check

When you find yourself fighting to look after your own child your emotions can begin to take over. It is important when you begin to plan your child's parenting and the access of the father that you understand the law and how it might impact on your child's future.

Remember that if your child's father is on the birth certificate, or you were married and are now divorced, the father has the same access to the child as you do in the eyes of the law. If they take your child or even threaten to do so, the police can often be powerless to change the situation. The best advice is to seek mediation and organise access in a written agreement, give yourself something concrete to work from. If your ex is unreasonable then apply for a residency order to ensure that you keep custody of your child.

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Share Your Story, Join the Discussion or Seek Advice..
[Add a Comment]
My ex has my son every other weekend usually. And up until now it has been, fairly, amicable. The last time my son went he came back upset that his step mum had shouted at him after having an accident. He is claiming that my son is lying and as punishment will miss his next weekend at his dad. I feel this is completely unreasonable and have said that if he doesn't have him this weekend then I'm cutting contact as it is not fair. He is on my sons birth certificate so has PR. Am I ok to do so?
Kntr4 - 28-Apr-16 @ 9:14 PM
Bobby123 - Your Question:
My ex refused to go on the birth certificate when our 2 year old was born but now out of the blue wants parental rights in the form of a signed affidavit. Can I be forced into this? Access is not an issue he can see our child whenever he wishes. I do not trust him at all

Our Response:
You cannot be forced into signing anything you do not wish to sign. If you do not agree with your ex wanting parental responsibility, then your ex will have the option to take the matter to court. However, the court rarely refuses a biological father parental responsibility unless necessary.
ChildSupportLaws - 27-Apr-16 @ 12:40 PM
My ex refused to go on the birth certificate when our 2 year old was born but now out of the blue wants parental rights in the form of a signed affidavit. Can I be forced into this? Access is not an issue he can see our child whenever he wishes. I do not trust him at all
Bobby123 - 26-Apr-16 @ 4:29 PM
mousec - Your Question:
Hello I have separated with my partner about 1 month now we have a 3 year old we live together.I have a shared ownership property 25% mortgage 75% rent My ex partner doesn't work and I work full time and pay all bills in the house Now we split up she has no intention of leaving the property I'm prepared to support my child with payments and anything else I can but I don't wanna be sponged off by supporting my ex She said she gonna take my child and I c her on my days off work which I agreed with but I don't want to live with her as I'm trying to be civil but she's not Where do I stand with getting her out the house?

Our Response:
I can only suggest you seek legal advice. It is a tricky situation and it depends on how long you have been together. Your ex may have rights if you have a child between you and she is to become the primary carer (especially if she has nowhere to live). A court can also make long-term arrangements about housing in certain cases where there are children. It's worth paying for some advice in order to find out about your own rights and options. In the meantime please see the CAB link: 'Ending a relationship when you're living together', here which will give you some rudimentary information regarding your situation. I hope this helps.
ChildSupportLaws - 26-Apr-16 @ 9:59 AM
Hello I have separated with my partner about 1 month now we have a 3 year old we live together. I have a shared ownership property 25% mortgage 75% rent My ex partner doesn't work and I work full time and pay all bills in the house Now we split up she has no intention of leaving the property I'm prepared to support my child with payments and anything else I can but I don't wanna be sponged off by supporting my ex She said she gonna take my child and I c her on my days off work which I agreed with but I don't want to live with her as I'm trying to be civil but she's not Where do I stand with getting her out the house?
mousec - 25-Apr-16 @ 8:09 AM
Hi there I have a 8 months old baby. Father n me r not together but his on the birth certificate . I'm Hungarian living in the uk. I'm planning to move back home but I think dad wud not let me. Baby his on the child protection plan as father was drinking and was abuseve towards me when I was pregnant . He sees baby only Friday's supervised contact. I dunno how can I move back home or what do I need to do. Baby his under my care but there is no court order or anything like that. Please help me I'm really desperate . Thank you
Alexa91 - 23-Apr-16 @ 1:28 PM
Vikkiki - Your Question:
Hi I split up with my ex few month ago because he cheating on me with hes ex he keeps threatening me he will take baby away from me and im only pregnant 12 weeks have some screenshots where he saying that or like he destroy my life and simular stuff hes ex and friends threatening me too have all messages to prove he had loads criminal stuff in past no job no place to live does he can try to get baby from me if I wont put he on birth sertificate? Thanks for answer

Our Response:
If you do not put his name on the birth certificate then he has no parental rights. However, I would keep all the texts and correspondence such as this as evidence should you need it. If you also feel your ex is harassing or intimidating you, then you can should contact the police, see: Ask the Police link here .
ChildSupportLaws - 22-Apr-16 @ 2:53 PM
jen - Your Question:
My ex has refused to pay csa for the last 6 months or so I've now told him I'm going to cut contact as he still refuses to pay. he's now saying if I send my son to my mums for the night (a request made by my son) he will turn up with the police to take him. where do I stand in regards to this? T.I.A. :)

Our Response:
Firstly, you do not give a reason why your ex has refused to pay CSA. If he is registered with the agency then he will fall into arrears if he is avoiding paying. If he cannot pay because he has lost his job for instance, then this is not his fault. Secondly, child maintenance and child access have no bearing on one another and children should not be used as bartering tools or bribes in situations such as this. If for any reason your ex cannot pay child maintenance, then he should not have to lose out on access to his child as a result. If your ex is making threats regarding taking your son, if he has Parental Responsibility the Police cannot get involved here to help take your son, or retrieve your son if your ex decides to take him without your consent (because he has PR). It is a difficult question to be able to advise on without knowing the full situation, but I can only recommend Mediation if you have come to a stalemate situation regarding finding a solution to your disagreement. Situations like this can spiral out of control and it is advisable to try and sort the matter out rationally before it goes too far.
ChildSupportLaws - 22-Apr-16 @ 12:16 PM
Hi i split up with my ex few month ago because he cheating on me with hes ex he keeps threatening me he will take baby away from me and im only pregnant 12 weeks have some screenshots where he saying that or like he destroy my life and simular stuff hes ex and friends threatening me too have all messages to prove he had loads criminal stuff in past no job no place to live does he can try to get baby from me if i wont put he on birth sertificate? Thanks for answer
Vikkiki - 22-Apr-16 @ 9:47 AM
My ex has refused to pay csa for the last 6 months or so I've now told him I'm going to cut contact as he still refuses to pay... he's now saying if I send my son to my mums for the night (a request made by my son) he will turn up with the police to take him... where do I stand in regards to this? T.I.A. :)
jen - 21-Apr-16 @ 5:07 PM
Ontherock- Your Question:
My ex took my child from the western isles of Scotland to Cornwall to live and she is refusing to give me her address. I think her and my child are in a refuge what can I do to get her address for taking her to court?

Our Response:
You can apply through the courts via a C4 form which is anapplication for an order for disclosure of a child's whereabouts. If you apply for this alongside a contact order it will allow the courts to trace your child in order that you can apply for contact/access. It does not mean your ex's address will be disclosed to you (if your ex wishes it to remain confidential) but it does mean you can put the wheels in motion to regaining access to your child.
ChildSupportLaws - 21-Apr-16 @ 12:00 PM
My ex took my child from the western isles of Scotland to Cornwall to live and she is refusing to give me her address.... I think her and my child are in a refuge what can I do to get her address for taking her to court?
Ontherock - 20-Apr-16 @ 2:25 PM
JJ - Your Question:
Hi my bf left me pregnant about 10 weeks and with a deciso disease by whatsapp. I'm sure he left me for an other woman but he told is not true.anyway he talk to me just by whatsapp because he told me he feels to be an idiot and he scared to meet me because he is shy! He is just smart and I don't care for him as he don't care for me and my health trouble. After told me when he was angry because I have insulted hon, now he want give his name to the Child. I dome want him in our life what can I do? Thanks

Our Response:
You do not have to put his name on the birth certificate or give your child the father's surname. However, if the father wishes to be part of his child's life, he can apply through the courts. Every father is entitled to be given a chance to be part of his child's life and have parental responsibility, the same as the mother.
ChildSupportLaws - 20-Apr-16 @ 11:58 AM
Hi my bf left me pregnant about 10 weeks and with a deciso disease by whatsapp. I'm sure he left me for an other woman but he told is not true .anyway he talk to me just by whatsapp because he told me he feels to be an idiot and he scared to meet me because he is shy! He is just smart and I don't care for him as he don't care for me and my health trouble. After told me when he was angry because i have insulted hon, now he want give his name to the Child. I dome want him in our life what can i do? Thanks
JJ - 19-Apr-16 @ 8:37 AM
Hi, I'm expecting my first child with an ex partner, I left him after he stated he wanted nothing to do with the baby and wanted me to have an abortion. I was not able to go through with the abortion so decided to walk away from him thinking he will change his mind about the baby. We were engaged to be married this year yet this unexpected news put a stop to it all. We were amicable until he told me he would be denying being the baby's father and wanted nothing to do with the baby. At the time I was obviously angry with this decision as he already has two children living with him and could jot unseat and why our child meant nothing to him. I told him I would be claiming for maintenance and left it at that. Since then some members of his family have harassed me and I believe with intent of causing harm to baby, but this is just speculation. I have since managed to block any contact with his family but I am obviously concerned for what the future holds once baby is born. If my ex partner is willing would I be able to write out a contract with our agreed terms and conditions in relation to the baby, for example, I will not claim maintenance as long as he does stay away from the baby? This would have both our signatures and even if possible an impartial witness to the signing. We would both have a copy and keep it private until a time that one of us may break this contract, I.e. Ex partner tries for custody. Would this contract be legit in the court or would I just be causing myself more distress by putting it in place with no means to an end? I was willing at the beginning to be amicable with the father and do a co parenting situation however a side has been seen that has caused much concern. Any advice would be gratefully received. Thank you
Concern mum2b - 16-Apr-16 @ 7:08 PM
My ex partner has said she is ceasing contact until there is a proper contact order in place. For the past 3 and a half years I have had contact with my children sat-mon morning, I asked this week on this one occasion to deviate from the agreement as my partner has a work commitment (she has adapted her schedule to provide us to drop the children off on a Monday morning however there was no way round this one as it was already scheduled), she said no as she had plans and wouldn't be there for the arrival of the children. I then asked my mother if she would be able to take me there on Monday to drop them off as there is no public transport that would allow me to get them home on time for school, therefore sorting out that I would still have them sat-mon as is the usual times. My ex partner has now decided that she wants the children back on a Sunday every week, even after stating that I had to stick to my days she is now claiming that the children do not settle properly under this arrangement after previously repeating that I stick to the original arrangements of sat-mon. I have refused this and she has now stated that she will not allow me to pick up the children for my visit on Saturday until there is an agreement in place. Can I still go and get them legally (I have parental responsibility) and what can I do about still having the access days?
K-M - 15-Apr-16 @ 5:45 PM
HI I NEED SOME ADVICE I SPLIT UP WITH MY EX PARTNER OVER 3 YEARS AGO AND WE SORTED CONTACT THROUGH MEDIATION INSTEAD OF GOING TO COURT AND SET UP AN AGREEMENT WHICH WE BOTH SIGNED. HES NOW CUT HIS DAYS DOWN TO ONLY THE WEEKENDS WHICH I AM FINE ABOUT. BUT HE KEEPS TURNING UP LATE FOR THE BOYS AND THEY COME BACK WITH BUMPS AND BRUISES ON THERE BODY ALL THE TIME, AND CANT EXPLAIN TO ME WERE THEY HAVE COME FROM. AND DROPS THEM OFF LATE TOO. TEXT ME MINUTES BEFORE HES SUPPOSED TO PICK THE BOYS UP AM NOT COMING OR JUST DUSNT TURN UP HE HIMSELF IS ALWAYS THREATENING ME OVER THE PHONE COMES TO MY HOUSE TEXT MESSAGES AND HE GETS HIM FAMILY INVOLVED ON THE PHONE TO MY HOUSE ECT.... I HAVE ALREADY PHONED THE POLICE TWICE FOR HIM THREATENING ME !!! AM STRESSING ALOT ANY ADVICE WOULD BE MUCH APPREICATED
JONZEY - 14-Apr-16 @ 10:51 PM
Confused - Your Question:
If my new partner adopts my children legally will there biological dad stop having to pay maintainence?

Our Response:
If your new partner adopts your children then the adopter is liable to financially maintain your children - any financial liability from the biological father will effectively end.
ChildSupportLaws - 13-Apr-16 @ 2:27 PM
If my new partner adopts my children legally will there biological dad stop having to pay maintainence?
Confused - 12-Apr-16 @ 8:46 PM
lil - Your Question:
My partner gives his ex money every week in her hand. Takes his daughter 2 or 3 days a week. But now she wants to get lawyers involved and go to CSA for reasons we don't know. He isn't doing anything wrong he pays for his daughter and buys her stuff when needed. She will go to CSA and say he doesn't bother with his daughter. What can he do in court to prove he does

Our Response:
It is very difficult if he gives his ex cash as there is no way to prove that he is financially supporting his child. However, if his ex approaches the CSA/CMS then my only piece of advice is once an agreement is laid out via the CMS, then not to pay his ex cash again as he will then be then liable for arrears if he cannot prove payment.
ChildSupportLaws - 12-Apr-16 @ 2:53 PM
Lovely - Your Question:
I am not with my partner I was living with him and my daughter and he kicked me out. I had no where to go so I left my daughter with him. I moved to Las Vegas to see if my dad could of helped me but he denied helping. I had no where to go. This kind man asked me if I had no where to go he said I can live with him only if I clean his house and cook for him. I now have somewhere to sleep in I also have a job. He was able to provide me a job. I asked social services for help because I had no where to go they didn't help me. I asked my mom she didn't help me. I want full cousty of my daughter but then again if I move back to California where will me and my daughter go to. I am scared that one day we will go to court and he will say I abandoned her when in fAct I didn't I just couldn't provide for her. She is only 1 years old. I didn't see her walk she cries when I am not there she cries when I leave down so I can go to the restroom. The father knows it but he wants to see me suffer. I need help I want to be with my daughter but social services won't help me. I am just 20 years old

Our Response:
I am sorry to hear this. However, we are unable to offer advice here as we are a UK-based website with knowledge only of UK family law.
ChildSupportLaws - 12-Apr-16 @ 12:11 PM
My partner gives his ex money every week in her hand. Takes his daughter 2 or 3 days a week. But now she wants to get lawyers involved and go to CSA for reasons we don't know. He isn't doing anything wrong he pays for his daughter and buys her stuff when needed. She will go to CSA and say he doesn't bother with his daughter. What can he do in court to prove he does
lil - 11-Apr-16 @ 11:13 PM
I am not with my partner I was living with him and my daughter and he kicked me out. I had no where to go so I left my daughter with him. I moved to Las Vegas to see if my dad could of helped me but he denied helping. I had no where to go. This kind man asked me if I had no where to go he said I can live with him only if I clean his house and cook for him. I now have somewhere to sleep in I also have a job. He was able to provide me a job. I asked social services for help because I had no where to go they didn't help me. I asked my mom she didn't help me. I want full cousty of my daughter but then again if I move back to California where will me and my daughter go to. I am scared that one day we will go to court and he will say I abandoned her when in fAct I didn't I just couldn't provide for her. She is only 1 years old. I didn't see her walk she cries when I am not there she cries when I leave down so I can go to the restroom. The father knows it but he wants to see me suffer. I need help I want to be with my daughter but social services won't help me. I am just 20 years old
Lovely - 11-Apr-16 @ 4:08 PM
Hi I have never been married to my ex partner. I split with my ex partner approximately 18 months ago. We have two boys one born 2004 and one in 2006. She now has a new partner and so do i. I pay CSA via direct from my wages. She will not allow me to see them at my address due to me now living with someone else(although it is ok for her partner to stay over where my kids live).She has told the school to not allow me onto the email list(for activity notifications and forthcoming events at his school). - is this allowed - there is no court order or any other order against me so how can this be allowed?? PS I am on the birth certificates for both my children.
Manstar - 8-Apr-16 @ 1:25 PM
Confused - Your Question:
Hey there. I split with my ex almost 9 yrs ago we never married or lived together. Hes never tried to contact our son and has since been married. Hes names on the birth cert. I just wondered where I stood in case he wants to see our son. Any information would be very welcome. Thanks.

Our Response:
If your ex was to get in touch now that you do not have to allow him to see your son. But should he wish, he can apply through the courts for access as there is nothing to stop him, regardless of whether his is on the birth certificate or not. At the same time, there is no rule to say the courts would grant him access, it would be the decision of the courts and whether they felt it was in the best interests of your son. Every parent has the legal right to apply for access to see their biological child.
ChildSupportLaws - 8-Apr-16 @ 12:56 PM
Hey there. I split with my ex almost 9 yrs ago we never married or lived together. Hes never tried to contact our son and has since been married. Hes names on the birth cert. I just wondered where i stood in case he wants to see our son. Any information would be very welcome. Thanks .
Confused - 7-Apr-16 @ 7:55 PM
eggy - Your Question:
Hi,I'm a single mum getting married this year. My fiance has 2 children he pays maintenance too,when married is his ex entitled to what little income I receive aswel?

Our Response:
No, you are not financially responsible for your partner's children.
ChildSupportLaws - 6-Apr-16 @ 2:54 PM
Hi,I'm a single mum getting married this year. My fiance has 2 children he pays maintenance too,when married is his ex entitled to what little income I receive aswel?
eggy - 5-Apr-16 @ 11:06 PM
j - Your Question:
I was in a physical and mentally abusive relationship for 5 yrs. When we seperated I found out I was pregnant, he told me to' get rid' and spread lies to all our mutual friends that the baby wasnt his. His name isnt on the birth certificate due to him denying our son. He hasnt shown any interest or provided for his son. I do want my son to have a dad so I asked him him to spend some quality time to get to know our son.that worked well for about a month. Then he stopped giving money his reasons were he and his girlfriend were saving for a holiday.now he turns up randomly without warning, walks around the house like he still lives here my bedroom isnt even safe from him.last time he turned up stinking of alcohol from the night before demanding to see our son. I told him no. He left and within 2 weeks I recieved a letter of mediation from his solicitor. I cant afford the mediation fee so now hes taking me to court!!. What are my rights will he be able to take my son?

Our Response:
He will not be able to take your son as it is highly unlikely the court would award a non-resident parent full care of your child, especially as he has had very little contact with him and he is not registered on the birth certificate, therefore you need not worry. The most that will be agreed will be that he would be given parental responsibility, and contact (as deemed appropriate by the courts), in turn he would also be financially responsible for his son and asked to contribute to his upbringing, if he is earning.
ChildSupportLaws - 5-Apr-16 @ 12:13 PM
I was in a physical and mentally abusive relationship for 5 yrs. When we seperated i found out i was pregnant, he told me to' get rid' and spread lies to all our mutual friendsthat the baby wasnt his. His name isnt on the birth certificate due to him denying our son. He hasnt shown any interest or provided for his son. I do want my son to have a dad so i asked him him to spend some quality time to get to know our son..that worked well for about a month. Then he stopped giving money his reasons were he and his girlfriend were saving for a holiday..now he turns up randomly without warning, walks around the house like he still lives here my bedroom isnt even safe from him...last time he turned up stinking of alcohol from the night before demanding to see our son. I told him no. He left and within 2 weeks i recieved a letter of mediation from his solicitor. I cant afford the mediation fee so now hes taking me to court!!. What are my rights will he be able to take my son?
j - 4-Apr-16 @ 12:42 PM
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