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(Court of Appeal, Moore-Bick, Aikens, Black LJJ, 21 December 2012)
Following the parents' separation the 5-year-old child lived with her mother and had contact with her father. When contact arrangements broke down the father brought proceedings to have contact restored.
The mother's new partner, with whom she lived with and had two further children, was of concern to the local authority. During the father's contact proceedings he learnt of the concerns and instead sought residence of the child.
A local authority risk assessment reported a history of serious domestic violence by the mother's partner on his previous partner and their three sons. The assessment concluded that while there was no evidence of domestic violence in the mother's relationship there were strong indicators that he could pose a future risk to the children. The guardian concluded that the mother would not be able to meet the child's needs while her partner was living in the household and that the child should live with her father.
When the mother confirmed that she was separating from her partner the guardian conceded that the children could remain with her for the majority of the time under a shared residence order providing that if her partner was once again in contact with the child, residence would be transferred to the father. The mother sought a sole residence order and refused to agree that the child would not come into contact with her partner.
Just prior to the hearing to determine residence the father received a report from a private investigator confirming that the mother's partner was still living in the house. This was supported by the child telling her father that he was still there.
Despite the mother, her partner and the maternal grandparents providing evidence in support of the mother's denial of the allegation the judge found that the mother's partner was in fact living in the house and ordered an immediate transfer of the child's residence to the father on an interim basis. The judge refused to grant the mother additional time to provide documentary evidence in support of her case. The mother appealed.
Allowing the appeal; submitting the case for rehearing. The judge's robust case management decisions had deprived the mother the opportunity to defend the case against her and deprived the court of the evidence that was necessary to make reliable findings of fact.
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