Hearing on allegations of abuse by father ‘should go ahead’

Family Law|December 7th 2016

A fact-finding hearing into allegations of abuse by a father should proceed, the Court of Appeal has ruled.

T (A Child) concerned an acrimonious dispute between the Polish parents of a seven year-old boy, referred to as ‘AB’ in court judgements.

In August, in the Family Division of the High Court sitting at Leicester, Judge Bellamy ruled that the mother of AB should be returned to the UK and that previous plans to hold a fact-finding hearing into allegations made the mother against the father should be set aside as these would no longer be “necessary or proportionate”.

The proceedings dated back to April 2013, when AB’s father had applied for contact – the right to visit – his son. The mother resisted this and the case has been ongoing ever since.

Her opposition was based on claims that the father had subjected her to sexual, physical and emotional abuse since her teens, when they had lived together in Poland. They  later married and moved to England. He had also subjected AB to physical punishments and abuse she insisted, and the boy had sometimes been present during violence towards her.

In the Court of Appeal, Lord Justice Ryder, the Senior President of Tribunals, explained:

“As a consequence … she does not wish the father to have unsupervised contact with their son.”

The father denied the allegations. Criminal proceedings against him were considered but did not materialise. The mother is now involved in another relationship and plans to move back to Poland with AB and set up home with her new home.

The father, meanwhile, wants unsupervised visits with the boy in England, a position provisionally supported by AB’s legal guardian. The boy had been made a ward of court as the case continued.

By August of this year the mother was in Poland with AB. She had travelled there for a holiday but complications in her pregnancy kept in Eastern Europe. AB also fell ill for a while

At that point, Judge Bellamy ordered the child’s return to the UK and the abandonment of the plans for a fact-finding hearing. Instead, he said, a hearing should be held into the AB’s future welfare.

But AB and his mother remained in Poland because she was unable to travel, and this situation was unlikely to change until her new child was born.

In his subsequent ruling, Lord Justice Ryder explained:

“In addition, it is now reported that AB has become aware of the possibility that he will be separated from his mother’s care if he is returned to this jurisdiction during her pregnancy and that he is distressed about that possibility and resistant to it.”

Judge Bellamy had considered the possibility that social workers might be forced to place the boy in foster care if neither his mother nor his new stepfather were willing or able to return to the UK from Poland with him.

The mother appealed Judge Bellamy’s decision. Lord Justice Ryder noted that his colleague had considered whether a fact-finding hearing was still necessary or proportionate and whether the mother’s allegations, if proven, would place AB at risk during visits from his father.

According to His Lordship:

“The underlying welfare analysis accordingly necessitated determination of the truth of the allegations in order to draw appropriate inferences from the same.”

The Judge had not properly considered the importance the mother placed on the allegations she had made. These had been accepted by the courts to the extent that “special measures” were to be put in place in order to protect the mother from exposure to AB’s father when she gave oral evidence in court during the planned hearing. In addition, the Judge had “misunderstood “ the nature of the guardian’s support for contact: it had been dependent on still-to-be-made findings by the court that the father did not pose a risk.

Therefore, concluded Lord Justice Ryder:

“… a more proportionate and fairer way of dealing with the case management issue [the decision whether or not to hold a fact-finding hearing] that had arisen would have been to adjourn the finding of fact hearing … when welfare disposal [a decision on AB’s future welfare] could also have been undertaken.”

The decision to abandon a fact-finding hearing had therefore been “plainly wrong”, he continued, and the case should therefore continue under a different judge.

Read the ruling here.

Author: Stowe Family Law

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