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(Court of Appeal, Black LJ, 22 July 2013)
When the parents of three children, now aged 14, 11 and 7, separated the mother relocated with the children and the father's application for residence was dismissed but alternate weekend staying contact was ordered. The father later reapplied for a residence order.
The older children had reportedly informed the Cafcass officer that they wished to live with the father but the officer was concerned about the extent to which they understood the consequences of moving and whether they had been exposed to pressure from the father. In light of those concerns the Cafcass officer recommended that the children remain with their mother. The judge made a residence order in favour of the mother and also reduced contact with the father to one weekend per month. The father sought permission to appeal.
Permission to appeal was granted but only in relation to contact. The Court of Appeal could not go behind the judge's finding of the children's best interests in relation to residence and she had been entitled to take into account the Cafcass officer's concerns.
The contact issue was different as a reduction had not been sought by any party. While the court could in certain circumstances make an order of its own motion the parties would need to be given the opportunity to present their views and the court would need to ensure it had all the necessary evidence. In circumstances where the views of the child on the subject of contact had not been ascertained the father would be granted permission to appeal on this issue only.