A mother who lost residence of her two children to their father has won an appeal against a refusal to grant her more contact.
In A-M (Children), the parents had married in 2000. They had two children – a daughter who is now 13 and a son aged 11. The parents separated in 2004, and the children initially lived with their mother. Litigation over the children began shortly after the parents separated and there were “difficulties” over contact.
At the Court of Appeal, Lady Justice Black noted that residence had been transferred to the father in September 2010, because the Judge believed “the children had been subjected to the stresses of the mother’s anxieties and hostilities” and the mother’s treatment of the father had harmed their “emotional welfare”.
She also reportedly believed that her daughter had Asperger’s Syndrome – a form of autism – even though evidence suggested that this was not the case.
The mother applied for an increase in the contact she was allowed with the children – from once a month, in a contact centre, under supervision, to twice a month, as well as over half the school holidays.
The children were made parties to the proceedings – ie technical participants – with their interests represented by socio-legal charity NYAS. The latter opposed the mother’s application and invited the court to instead order a reduction in contact with the mother – from monthly visits to just six a year – and the judge accepted their recommendation.
The mother appealed and her arguments found favour with Lady Justice Black, Lord Justice Elias and Lord Justice Patten.
Lady Justice Black declared:
“There is a difficult balance to be struck in this case. The children love their mother and want to see more of her. Her approach in the aftermath of the 2010 order transferring residence to the father has not made that easy to achieve.”
However, the Judge who ordered the reduction in contact had not considered properly evaluated the nature of the mother’s contact with her children in the contact centre. No material dealing with the contact sessions was included in the earlier Judge’s ruling.
This material was so important, said Lady Justice Black, that its omission from the ruling had been “fatal to [the Judge’s] decision.”
The case was ‘remitted’ (sent back to the lower courts) for a new hearing.
Transfer of residence from a mother to a father is uncommon but does occur. In February we reported on the case of RS v SS, in which a father won a residence order in relation to his two sons after complaining that their mother had obstructed contact.
Read the full judgement here.