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Domestic Violence in Family Proceedings. In this important case the CA reviewed research and sets out the factors to be addressed when considering domestic violence and contact.
Domestic Violence in Family Proceedings; In this case the CA reviews research and sets out the factors to be addressed when considering domestic violence and contact;
Application for permission to appeal, with appeal to follow, refusal to allow a mother relocate to Somerset from London in a case involving a shared residence order for the couple’s daughter. Permission granted but appeal dismissed.
The parents had met in 1999 in South Africa and married in 2002 but that soon broke down and they divorced in 2003. The child was born before then and had lived with the mother except for a period of three months when he stayed with the paternal grandparents. In 2005 the father initiated contact and residence proceedings but the parties were, in the words of the guardian, “implacably hostile”. An expert witness report on the child stated that he was being damaged by the battle but the expert opposed a shared residence order but saw no particular benefit in giving the father care: instead he thought independent foster care should be considered. The guardian differed from the witness in arguing for placement with the grandparents and the trial judge agreed.
In this hearing, counsel for the mother argued several points relating, among other issues, to the judge’s failure to give due weight to existing relationships, the contribution of the biological parent or pursuing family therapy. Therefore the judge was plainly wrong. Wall LJ agreed and allowed the appeal for two principal reasons: i) the judge had not “grappled with the fundamental proposition that children have a right to be brought up by their natural parents unless their welfare positively demands the replacement of that right.”; and ii) there was a flaw in his reasoning in that he had accepted the expert witness evidence for independent foster care but placed the child with the grandparents who are patently not independent. In a postscript Wall LJ comments on the damage caused by such protracted litigation by citing the famous line from Philip Larkin’s “This be the verse”.
In general there is an obligation on a LA to share relevant information relating to a child in their care with its parents. Such information was held in the instant case not to include the fact that a foster father was HIV positive since the risk of infection was negligible, it was not information which would affect the court’s decision. Where the risk was not negligible the duty to disclose might overcome the foster father’s right and the duty owed to him. Court: High Court (Family Division) (England and Wales)
The wording of s1 of The Children Act 1989 did not create any presumption one way or another as to whether an order should be made or not. The court was required in each case to consider whether or not it was better for the child for there to be an order, as opposed to no order at all. In this case the simple fact that an agreement had been reached between the parties after issue did not mean that no order was necessary; it was not a case where there had been no disagreement at all and where the proceedings had been issued simply to get an imprimatur from the courts. The residence order should have been made as requested. Court: Court Of Appeal (England and Wales)
Where a finding had been made that a father was within a pool of potential perpetrators of abuse against the child in question, and it was subsequently discovered that the teacher upon whose evidence the Judge had largely relied in making that finding had been in a collusive relationship with the child’s mother, it was necessary to retry the issue. Neither the mother nor the teacher had not been full and frank in their sworn testimony, and had omitted to mention important disclosures the child had made about other possible perpetrators: their evidence would have to be re-evaluated in a fresh hearing. Court: Court Of Appeal (England and Wales)
Unsuccessful appeal against residence order to F (German). Both parents had worked in the UK during the relationship. Upon separation the Italian M had returned with the child to Italy and had obstructed contact. The English Courts made an order in his favour. In spite of the child’s lack of family connections in the UK the Judge had been correct to make an order maximizing the child’s chance of spending good contact with both parents. Court: Court Of Appeal (England and Wales)
The LA had obtained an Emergency Protection Order (EPO) in order to protect four children from the risk posed by their F insisting upon driving them to school in the absence of a valid driving licence and in circumstances where he was registered blind. The police power to remove a child under s46 Children Act 1989 could be invoked even where an EPO was in force, but where the Police officer was aware of the existence of the EPO police powers to remove should not be used unless there were compelling reasons to do so, i.e. where it was not reasonably practicable to remove under the EPO. The Police must have regard to the need to protect children from significant harm. Both the Police and the LA (who had played a significant part in the removal by the Police) were found to be in breach of Art 8 ECHR.