Family and Children
In the case of Re B (a child) (residence order: transfer of child to grandmother) [2012], The Court of Appeal set aside a residence order in favour of the grandmother after the mother’s appeal.
This case concerned a 4 year old child. The parents had a turbulent relationship. When they separated the child remained with the mother. There was an issue of contact between the child and the paternal family as the mother believed them to be abusive. The father made an application for contact followed by an application by the grandmother. A contact order was made despite the mother not being present at court or indeed represented as she had been hospitalised. The mother disobeyed the order. The mother was judged capable to take court action but she was deemed to be vulnerable. It was therefore recommended that the mother’s community nurse attend all future hearings to provide the mother with support and to give evidence.
The mother had made allegations of domestic violence and abuse and so the court arranged a fact finding hearing. The mother wished for an adjournment as neither she, her nurse, nor counsel were able to attend. This application was dismissed and the mother attended on her own. The mother compromised against the father and an order for contact was made. The mother disobeyed the order once again. The grandmother applied for an enforcement of the order. The mother walked out of the hearing. The grandmother then made an application for residence of the child.
Despite social worker assessments stating that it would be extremely damaging for the child to be removed from the mother the judge granted a residence order in favour of the grandmother. He believed the grandmother would promote relations between the child and the mother, whereas the mother would not seek relations between the child and paternal family. The mother was granted permission to appeal and the residence order was stayed until this time.
The mother appealed. She argued that there had been procedural error when the judge refused to allow an investigation in to the history of the matter. She viewed this as vital in justifying her actions. The mother also suggested that the judge viewed her as hostile. This was despite him not having clear findings through investigating the case history. The judge had also failed to explain why he had rejected the clear recommendations of experts.
The appeal was allowed.
The expert report was clear that the mother was vulnerable and needed protection. This protection had not been offered when she had to attend the hearing on her own. The judge had also not explained why he had ignored the clear advice of the social work team. The judge should not have made the rulings he did without looking at the history of the matter.
The residence order was set aside and an extensive re-trial would be required to give the judge a better opportunity to make a balanced assessment of the mother and grandmother.
Children Solicitors and Lawyers Eastbourne, Hailsham, Polegate, East Sussex
If you would like advice on children and contact matters please contact our Family Law Department for a free initial appointment on Eastbourne 01323 727321 or Hailsham 01323 841481.
Nicholas Dennis
Alexandra Funnell
Guy Brown
Carolyn Richards
Please note the above is for information purposes only and is intended to be a short summary. It should not be treated as a comprehensive guide and should not be acted on without qualified legal advice.
