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In a case concerning the issues of jurisdiction as between England and Wales and Canada the court held that a Mother had accepted the jurisdiction of the English court. It was held that it was in the best interests of the children that the English court should at present retain jurisdiction in relation to all aspects of parental responsibility. The English hearing in respect of contact would proceed with the issue of jurisdiction being treated as a 'rolling consideration'.
Court: High Court (Family Division) (England and Wales)
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 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)
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.
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)
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”.
An appeal was allowed where a Father following the conclusion of Contact proceedings had been injuncted from accessing or disseminating information from the papers. An order was substituted allowing the Father limited access to the papers.
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)
While the instruction of experts in family proceedings must be controlled the court should be slow to refuse an application for a second expert opinion in cases such a Non-accidental head injury where certain evidence may be pivotal and by it's nature not easily challenged save for by another expert opinion.
The CA upheld a judge’s decision to allow a Father who was primary carer to emigrate with his new partner and the child to Australia. The mother who was not having direct contact with the child had argued that there was no evidence that the Father would be distressed by a refusal.