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Mother fails to overturn residence order for father

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The Court of Appeal has dismissed a mother’s appeal against an order that her son live with his father.

In S (A Child), the boy in question, referred to as ‘N’, is now eight years old. He had little contact with his father for the first few years of life. In 2009, however, the father applied for contact with his son. The mother alleged domestic violence, but a court ruled that this claim could not be substantiated, although the father did admit to behaving improperly in some communications with the mother.

In 2011, she was granted a residence order and the father a contact order. This meant that N would officially live with her but see his father at regular intervals. This arrangement continued until summer 2012, and father and son established a close relationship.

However, the mother then claimed that the father had violently assaulted his own father, in collaboration with his sister, and stopped contact. But a further hearing made no findings against the father and ordered that the mother allow contact between the father and son to resume. She did not do so, however, so the father was granted an enforcement order with a ‘penal’ notice attached, stating that she faced legal penalties if she did not comply.

Shortly afterwards, the father applied for a residence order, in order to try and enforce the contact order. This would mean that N would come to live with him. Court proceedings began and a legal guardian was appointed to represent the child in court.

At the Court of Appeal, Lady Justice Macur noted:

“In preparing for the hearing [relating to the father’s residence application], N’s guardian sought the opportunity to observe contact between N and his father.  She was refused by the mother in no uncertain terms. “

In March last year, the father’s application reached court, and a Judge ordered shared residence, splitting N’s time between each parent.

By this point, social services had become involved, having grown very concerned about the child’s welfare.

The mother failed to attend a subsequent hearing transferring care of N to the father. The mother responded by absconding with N and he was eventually removed by the police.

The case came back before the courts in June but the mother also refused to attend his hearing. The residence order, transferring the care of N to his father, was confirmed.

The mother then launched an unsuccessful appeal. She argued, amongst other points, that the courts had not properly considered the allegations of violence against the father or properly considered her son’s welfare. The courts had not investigated allegations of verbal abuse against the father, she claimed, and the judge had held an “unbalanced” picture of the situation.

But the Court of Appeal declared that the earlier judge had not been required to investigate the earlier allegations of violence, which had not been substantiated by the police. The judge had also not needed to investigate occasions on which the father had shouted at his son, nor was he required to detail every aspect of the ‘welfare checklist’ used in family court cases to establish proper consideration of a child’s best interests.

Consequently, ruled her Ladyship:

“The mother is singularly unable to establish that this judge was wrong or that the procedures he adopted … [were] unfair.”

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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