Court dismisses father’s appeal against return of son

Family|September 28th 2015

The Court of Appeal has dismissed a father’s objections to an order that his son be returned to his mother despite allegations of abuse.

In Re B (A Child), the boy, referred to as ‘R’, was six years old. His parents lived together but never married. When they separated the year after R’s birth, he continued living with his mother, along with his much older half-brother. His father, meanwhile, returned to live with his own parents.

Initial difficulties between the parents regarding contact were resolved by an order made in June 2012. This stated that R would stay with his father every other weekend as well as on Wednesday evenings.

This arrangement continued until May this year. That month, while staying with his father and grandparents, R become upset when he was unable to find some of his underwear and told his grandmother that he feared his mother would be cross with him. He then went on to claim that his mother sometimes slapped and hit him with a belt and that his elder brother occasionally also twisted his arm.

In the Court of Appeal, Lord Justice McFarlane explained:

The grandmother was understandably very distressed by these allegations made by this six year old boy. She properly contacted the authorities.”

The police and social workers visited the grandparents’ home in Oxfordshire and spoke to R. What he told them appeared to tally with the remarks his grandmother claimed he had made to her the previous day.

R was then taken to a hospital and examined by a paediatrician. A social worker reported that this again again seemed to back up the grandmother’s initial statement.

As a result, the father was advised not to return R to his mother or to allow any contact between her and the boy. “Clearly concerned”, she applied for a court order and the father responded by seeking an order that R should remain with him until a full hearing could be conducted.

The case came before Judge Tolson in June. The Judge concluded that, “despite what he had been told and what he had read”, it would be in R’s best interests to return to his mother pending a full hearing into the claims. The father quickly launched an appeal.

His counsel argued that the Judge Tolson had been premature in making his ruling that day on the basis of the limited information before him. Lord Justice McFarlane explained:

“Although no express application for an adjournment was made by the father’s counsel, it is apparent from her grounds of appeal [that it was] suggested to the judge that the proper course should be to put matters on hold whilst statements were filed and if possible oral evidence heard.”

The counsel also argued that a report from R’s school submitted by the mother was “a partisan document, generated following a request from the mother, and that it should not have been given any or any substantial weight by the court.”

His Lordship disagreed, saying:

“A report from a school which is seeing a young child, day in day out for the course of what must be at least most of a year, is likely to be a valuable source of insight for any professional, particularly a judge, having to make a decision such as this.”

The report had described R in very positive terms as an engaged and happy youngster.

The Court of Appeal concluded that:

“What the boy had said was worrying. The judge, however, was entitled to take a view as to the level of harm that R might be exposed to were he to return to the mother’s care. The judge plainly took the view that it was an acceptable risk in this case to return R to the mother’s care, both because of the level of allegation that R had made as to past abuse and in the light of the positive indicators about his care by the mother in all other respects that came from the school.”

Consequently the father’s appeal was dismissed pending “a full investigation within the court process” into the allegations of abuse.

Read the judgement here.

Author: Stowe Family Law

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