Care proceedings: mother wins appeal on basis of judge’s attitude

Children|July 9th 2014

A mother with two sons caught up in care proceedings has won the right to a retrial.

Q (Children) concerned a woman who has both a “significant” learning disability and epilepsy. A practicing Jehovah’s Witness, she married a Muslim man from Bangladesh in 2002.

The couple went on to have two children. The older boy, referred to as ‘W’, is now aged 11 while his younger brother is still only approaching his second birthday.

Sitting at the Court of Appeal in London, Lord Justice McFarlane explained:

“The couple had generated a level of concern in a number of local authority areas with respect to their care of W and as a result of the fact that they had moved some 10 times in the 10 years between the date of their marriage in 2002 and the date of their separation in 2012.”

Following the separation, the mother made a number of serious allegations against the father, including assault and rape. He was arrested and only granted bail on condition that he had no contact with the mother. However, the couple later appeared together at a police station and said they wished to reconcile.

As a result, the local council launched care proceedings for the two boys.

At a fact-finding hearing into the mother’s allegations, Judge Tyzack QC dismissed each of her claims, saying she was an unreliable witness and also criticising the behaviour of her mother, the boys’ grandmother. The latter had lied to the court, he declared. The judge, by contrast, believed the father was credible witness.

The mother’s legal team appealed, arguing that the judge had formed a firm view as to the credibility of the mother and grandmother without allowing them to properly state their side of the story.

In a unanimous judgement, the Court of Appeal ruled in the mother’s favour. Delivering the judgement, Lord Justice McFarlane cited forthright comments made by Judge Tyzack during the earlier hearing which:

“…would have caused a fair-minded and informed observer to conclude that there was a real possibility that he had formed a concluded adverse view as to the mother’s allegations and her veracity.”

The role of the family law judge was difficult one, said Lord Justice McFarlane. There was a thin line between “case management” and “premature adjudication” and he would be inclined to give judges the benefit of the doubt if they strayed close to this line.

However:

“Here, I am afraid, the words of the judge to which I have made reference, both separately and when taken together, take this case well over the line and indicate at least the real possibility that the judge had formed a concluded view that was adverse to the mother’s allegations and her veracity.”

The case was sent back to the lower courts for a retrial.

Read the full judgement here.

Photo by Sean MacEntee via Flickr under a Creative Commons licence

Author: Stowe Family Law

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