Wednesday, February 13, 2013

H (A Child):The harm of delay

Lady Justice Black
A brief discussion of H (A Child) [2013] EWCA Civ 72 (13 February 2013).

I'm not going to summarise the lengthy history of this case (which is well set out in paragraphs 5 to 37 of the judgment), but rather highlight what I think was the defining factor, and it is all too common: delay.

The case concerned the father's contact with his eight year-old son, and the primary issue was that the mother objected to contact at the father's home, as she was concerned the father might cause him harm. A directions hearing took place in July 2012 in relation to two matters: the mother's allegation that the father had taken the child to his flat in breach of the contact order as it then stood, and the father's application to enforce that order (the father did not proceed with this application, as contact recommenced upon his assurance that he would not take the child to his flat). Following this, the date for the full hearing relating to all outstanding contact issues was fixed for April 2013, some nine months away, due in part to pressure of work in the court.

A further directions hearing took place in October 2012, at which the judge lifted the restriction upon the father taking the child to his home:
"The judge was conscious, as he said, that other judges had not agreed to relax the relevant conditions but, he said, "those judges were not aware I am sure that it will not be until April that we can have a final hearing". He said "another best part of six months is a long time in an eight and a half year old child's life and it seems to me that I must look at the matter afresh"."
The mother appealed, essentially on the basis that the judge ought not to have relaxed the restrictions on contact without there first being a fact finding hearing in relation to certain "allegations" that the child had made about the father's conduct towards him and that not only was his decision premature, it was also a wrong exercise of his discretion on the evidence that was available, and put the child at risk.

Giving the leading judgment in the Court of Appeal, Lady Justice Black disagreed. The judge had balanced the risk to the child's safety as perceived by the mother on the one hand, with the risk of harm to the child by the continued restriction upon contact on the other, and had made a decision which was within the bounds of his discretion, supported by the evidence. The appeal was therefore dismissed.

Lord Justice Elias and Lady Justice Arden gave concurring judgments.

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