Court dismissed mother’s contact appeal

Children|May 29th 2015

The mother of a three year-old girl has failed in a bid to prevent her father from seeing his child.

A (A Child) concerned a couple who had been married since 2009. Their daughter, ‘R’, was born in January 2012 and the couple moved into a new home shortly afterwards. But their relationship had begun to deteriorate and on the Christmas Day 2013, a row erupted during which the father threw books at the mother. She left home, taking their daughter with her.

The couple were reconciled for a few weeks in January, during which time the husband accepted a police caution for assaulting the mother. But they parted again, this time permanently, on 20 January. The father saw his daughter on a few subsequent occasions, but at the time of the subsequent Court of Appeal hearing, had not seen her since 18 February 2014.

Contact had ceased after the mother made several allegations of domestic violence against her husband following his application for a contact order. He responded by alleging that she had been violent towards both him and their daughter.

Not long afterwards he changed his application, this time seeking a shared residence order. Not long afterwards, the mother went to the police and alleged that she had been sexually assaulted and raped over the course of the marriage.

At a fact-finding hearing in September last year, a Judge found the mother’s allegations of sexual assault to be true on the balance of probabilities – ie the civil standard of proof, “despite his obvious caution about accepting allegations of sexual misconduct that came to be made by the mother only after the father had applied for a “shared residence” order.”

The father was also found to have engaged in “low level” domestic violence and to have struggled to control his temper. At the Court of Appeal Lord Justice McFarlane explained:

“So far as the Christmas Day episode is concerned, the judge found that the father was becoming progressively more and more angry during the course of the day. He was highly critical of the mother’s food preparation and of the manner in which presents had been given by the mother to R. His anger built up and the time came when he threw some books at the mother.”

The father was refused permission to appeal against this finding.

Nevertheless, at a welfare hearing in January this year, the father was granted supervised visits with R once a week, for an initial period of one hour, for an initial period of one hour. The mother appealed, arguing that the court had failed to properly take into account the various findings made against the father. She wanted the contact order changed to one in which the father had no direct contact with his daughter at all, at least until the mother had completed a course of cognitive behavioural therapy.

She had recently been diagnosed with post-traumatic stress disorder in relation to her experiences with R’s father. She had developed an irrational belief that he would kill her and required treatment for her anxieties.

Her psychiatrist told the court that she would find direct contact between father and daughter “very difficult”.

But Lord Justice McFarlane was not persuaded of the need to set aside the father’s direct contact. He said the physical safety of the mother and R would be protected during the contact because the visits were to be supervised. Moreover, no direct contact between the mother and her former husband would take place. Therefore, there was “no potential for the father to exert any controlling or coercive behaviour towards the mother.”

The mother’s emotional and psychological wellbeing had been damaged, leaving her vulnerable to any reintroduction of the father. Nevertheless, the Judge had believed that she was ultimately “robust and will do all that she can to protect R from the emotional impact and physical impact that [contact] will have upon [her]”.

In addition, the mother might benefit from seeing that R returned safely from visits with her father.

His Lordship endorsed these findings. He concluded:

“The judge was required to make a decision in the context not only of the psychiatric evidence, but also in the context of the advice of the CAFCASS officer that delay in restarting contact was to be avoided and that a further period of no contact in excess of four months was contrary to R’s welfare interests.”

The mother’s appeal was therefore dismissed.

Read the judgement here.

Author: Stowe Family Law

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