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(Court of Appeal; Mummery, Rimer and Black; 29 October 2010)
A Cafcass caseworker was concerned about the impact of contact on the child and recommended only limited contact. The caseworker was unable to attend a directions hearing so the judge decided to continue without him but had a telephone conversation with him. The judge then treated the hearing as a final hearing, ordering indirect contact, with direct contact only four times a year, in mother's presence.
The father's appeal allowed. Written submissions are rarely a substitute for oral evidence. The father had not had a chance to put questions to the caseworker. The judge had given the caseworker a chance to give his evidence without cross-examination. The judge should not consider evidence of which not all parties are aware and upon which unable to make representations. The telephone conversation with the witness was a mistake on judge's part that had not been rectified by his relation of the conversation to the parties. A one hour directions hearing had turned into a final hearing without full evidence and cross-examination.
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