Children

Case outlining what parental responsibility means and examples as to what actions/activities do and do not requirethe other parent's need to be informed and/or consulted

In 2000 a father applied for a 'joint' (ie shared) residence order, arguing that he was being treated as a second-class Parent by authorities with whom he had to deal regarding the provision of information etc about the children. The mother sought a change in the contact pattern. The trial judge accepted the father's case and made a shared residence order. During the summer, problems arose over the children's return to the mother after a holiday abroad and she applied for an order that contact be supervised or suspended. The judge dismissed the application and ordered her to pay the costs of the hearing. The mother  appealed.

In refusing the appeal of a father who enjoyed contact with his child for a few hours a week before the mother moved to England CA held that the liberal New Zealand interpretation of ‘rights of custody’ was wrong and that there was no foundation to support the father’s contention that a positive determination (Art 15) by New Zealand was determinative.Court:

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 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”.

A shared residence case – the Court of Appeal supported the making of shared residence orders, even where the relationship between the parents was not especially harmonious.

A s.91 (14) order prohibited a Father from further contact applications was held to be appropriate although the Father had after seven years accepted responsibility for a serious assault on the Mother. Court: Court Of Appeal (England and Wales)

A judge hearing an application to discharge a care order under s.39 did not have the jurisdiction if he decided to discharge it to substitute an interim care order. S.39 (4) clearly defines and limits the courts jurisdiction such that a supervision order is the only order that can be substituted for a care order. Court: Court Of Appeal (England and Wales)

A father (F) was found to have been in contempt of court for breach of an injunction granted in favour of the mother. The injunction prohibited the F’s publishing or disclosing information regarding the children proceedings. He had published judgments on an internet site in such a way as to identify the child, for which he had received a 28 suspended committal order. However, there had been no order expressly restraining the publication of the judgments and no penal notice. Although F had been wrong to publish the judgments, where the liberty of the subject was at stake the order needed to be very specific and to provide an adequate warning of the consequences of breach. The committal order was discharged.

Court: Court Of Appeal (England and Wales)

A Judge refused a F’s application for contact. There were allegations of sexual abuse of the child against F which the Judge had considered and determined against him. The F’s appeal was not allowed against that order: It was the Judge’s role to decide which witness he preferred. He had done so and he had been alive to the deficiencies in the evidence before him. Court: Court Of Appeal (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)

n a contact case a judge had misremembered the facts of a case and had developed a polarised view of the parties. He had minimised the significance of the domestic violence and failed to have regard to Re L the seminal authority on domestic violence. He failed to have regard to the reporting officer and the experts view as regards the effect the violence had upon the mother. His decision was flawed.

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)

A judge’s refusal to order shared residence because it would affect the issue of control and power between the parents was held to be unreasonable. The CA decided this was a classic case for shared residence which would reflect the reality of the situation. Court: Court Of Appeal (England and Wales)