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The case FF v BM: Father wins appeal against indirect contact only

Children|March 18th 2020

The case FF v BM: Sometimes a case simply goes wrong. The court just doesn’t get it right. And sometimes the court seems to get nothing right. Sometimes other things go wrong as well.

Such a case was FF v BM, an appeal by a father against an order allowing him only indirect contact with his son. As we will see, the case was a catalogue of errors, particularly on the part of the lay magistrates who dealt with it.

Father’s immigration status

The case FF v BM concerned a three-year-old boy. Unfortunately, the judgment tells us little about him or his parents. All we know (and, as we will see, all we really need to know) is that his father is not a British citizen. We are not told where he is from, or how long he has been in this country, but prior to the decision of the magistrates in the case, he had applied to the Home Office for Leave to Remain in the United Kingdom.

Anyhow, the father applied to the Magistrates’ Court for a child arrangements order, to define the time that the child should spend with him.

The court, as usual, ordered that a welfare report be prepared by a Cafcass Family Court Adviser. The report recommended direct contact to take place between the child and his father, progressing from supervised contact in a contact centre, to contact in the community and thereafter progressing to overnight contact at the father’s home.

The application was heard by the magistrates at a final hearing in December last year. At the hearing, the father produced a letter he had received from the Home Office the previous month, which recorded that his application for Leave to Remain in the United Kingdom had been refused and that he was subject to a 6-month extension to allow the conclusion of the Children Act proceedings.

The letter changed everything.

In the light of it, the court invited Cafcass to address the court as to whether they had changed their recommendation, the original recommendation having been made on the basis that the father’s application for Leave to Remain would be approved. Cafcass responded by saying that:

“Given the likelihood that the father will be deported at the end of the extended period of leave, Cafcass would not recommend the commencement of any direct contact. This is due to the fact that [the child] would suffer abandonment and emotional distress which could trigger mental health issues if the contact suddenly ceased.”

The magistrates followed that recommendation and accordingly ordered that the father should only have indirect contact with the child, by way of letters, cards or gifts.

The father appeals

The father appealed against the order (the appeal was made after the expiry of the 21-day time limit for appeals, but I will not go into that). His grounds for the appeal were fourfold:

1. That the magistrates misunderstood the significance of the letter from the Home Office, wrongly assuming that it meant that the father would be deported from the United Kingdom at the end of the 6-month extension.

2. That the magistrates failed to properly apply the welfare checklist under section 1(3) Children Act 1989 when considering whether it was in the child’s best interest to spend direct time with his father, incorrectly considering that the father’s immigration status was determinative.

3. That the magistrates attached too much weight to the father’s immigration status.

4. That the magistrates heard no evidence from the parties and gave inadequate reasons why they considered that no oral evidence was required.

Hearing the appeal, His Honour Judge Middleton-Roy found that there was “considerable weight” to all four grounds of appeal.

In particular, the magistrates (and Cafcass) had been wrong to assume that the father would be deported. As Judge Middleton-Roy explained, the law states that, where there are no other reasons for deportation, the public interest does not require that person’s removal, where that person has a genuine and subsisting parental relationship with a [child], and it would not be reasonable to expect the child to leave the United Kingdom.

Accordingly, the whole premise behind the magistrates’ decision had been wrong.

Further to that, the magistrates had provided no reasons as to why they considered that the refusal of all direct contact between the child and the father was a proportionate interference with the child’s right to private and family life and to the father’s right to private and family life, and they had given scant consideration to the factors set out in the welfare checklist. In addition, their decision not to allow oral evidence from the parties was procedurally irregular.

Accordingly, the appeal was allowed, and the case FF v BM was remitted for rehearing before a District Judge.

You can read the full judgment on the case FF v BM here.

Get in touch

If you would like any advice on the issues raised by the case FF v BM or child law, you can find further articles here or please do contact our Client Care Team to speak to one of our specialist children lawyers here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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