Thursday, April 11, 2013

G-C (A Child): Moving contact on, or not

Lord Justice Thorpe
A short note on G-C (A Child) [2013] EWCA Civ 30.

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.

6 comments:

  1. Just what a mother cannot get away with by saying "it will sorry me"?

    It is to be hoped that there is an early relisting leading to the same result . . . and this time appeal-proof.

    ReplyDelete
    Replies
    1. The difficulty, of course, is filtering out the (few) cases where there is a real reason for contact not to move on - how can the court know the truth unless the mother's worries are investigated?

      Delete
  2. Northern Lights13 April 2013 at 22:57

    John,

    In fairness, I think in this case the mother's "anxieties" had been investigated already. When she ran out of road, she resorted, supported by a gullible CAFCASS officer, but unsupported by a shred of credible medical evidence, to the most spurious argument of all. The trial judge should have dealt with her before hand but finally ran out of latitude to afford her. About time.

    Allergies are easily managed (I know) and should never have held staying contact up in the first place, once the father informed himself accordingly.

    Thorpe really is wretched and utterly inconsistent in interfering (or not) with the discretion of lower courts - let's stop trying to polish a turd. He (along with one or two of his contemporaries) needs to go.

    ReplyDelete
  3. Northern Lights14 April 2013 at 18:43

    I really don't like him, John...

    And the fact that he looks like Peter Cook in the biased judge sketch has never helped.

    ReplyDelete

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