|Lord Justice Thorpe|
Any practising family lawyer will have come across the scenario: father applies for contact, he gets visiting contact, which should naturally move on to staying contact, but the mother resists.
In this case, the mother had a genuine concern: that the child be protected from risks deriving from her allergies. However, is she being too protective? The father had trained himself to deal with the risks posed by the allergies, and the judge "had become increasingly impatient with the mother's inability to move, and with her tendency to introduce a defensive position at a relatively late stage in each preparation for hearing".
And so it was. At the last moment before the final hearing, the mother filed a statement "in which she set out her strong anxiety, persisting anxiety, that to expose [the child] to staying contact was to expose her to risk, since very, very strict protective measures are necessary to ensure that she is not unnecessarily exposed to any substance that could excite or exacerbate her allergies". In the light of this statement, the Court Welfare Officer changed his recommendation, that had been in favour of moving on to staying contact.
The judge, HHJ Oliver, took a no-nonsense position: "This has been going long enough, and staying contact is now due or overdue, and accordingly he directed that there would be periods of staying contact". In so doing, he made adverse findings against the mother, without hearing from her, and did not address the welfare officer's concern that the mother's anxieties might feed into the child, and have a detrimental impact upon her.
The mother appealed. The Court of Appeal unanimously allowed her appeal. Giving the leading judgment, Lord Justice Thorpe said:
"I have considerable sympathy for the respondent to this appeal. What he aspires to is only normality ... Sadly, the reality is that the order is vulnerable to attack on procedural grounds. The judge was faced with a difficult position [having] only the afternoon to give to the case. The decision to hear only the Cafcass Officer was pragmatic and sensible, but it did restrict the judge's capacity to move the case on. He had to recognise the importance of the Cafcass Officer's shift in his oral evidence and he had to state in plain terms why he was rejecting that recommendation. It is by no means clear that he recognised that the Cafcass Officer was saying that the progress to staying contact would ignite anxieties in the mother which would risk harm to the child. That is the crucial element upon which he had to focus, which had its genesis the shift in the Cafcass Officer's position."Accordingly, the order was set aside, and the matter re-listed.