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Family Law

The leading authority on all aspects of family law

13 MAY 2005

CONTACT/RISK OF VIOLENCE: Re A (Contact: Risk of Violence) [2005] EWHC 851 (Fam)

(Family Division; Black J; 13 May 2005) [2006] 1 FLR 283

The father applied for contact with A, his son aged 7. The mother and father had not divorced by the date of the hearing and had not lived together since 2003. The mother accepted protection from the police in August 2003 because it was thought she was at risk of being attacked, possibly fatally, by the father and his family and there was a risk of the son being abducted to Pakistan. The purpose of the hearing was to make findings of fact regarding the risk of violence and abduction and past violence. The mother's allegations are serious ones and the burden of proving them rests firmly upon her. The standard of proof is the balance of probability, Black J citing Lord Nicholls' judgment in Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 1 FLR 80. Here A is at risk of being harmed either by being abducted or by virtue of his mother being subjected to violence by the father's extended family. The hearing was listed for 3 days but in fact took 7 days of the court's time. The practice of establishing how much time is available in the judge's list and then attributing to the case a time estimate that fits that slot is inappropriate and disruptive. This practice may achieve an earlier listing. However, there is a real risk that a greater delay will occur if the matter is removed from the list at the last minute because the judge cannot be satisfied that it can be concluded in the time allowed. The legal representatives must contact the listing office if it becomes apparent before the hearing that the time allocated is inadequate. The court expects the best possible evidence to be put forward. It may be that a judge refuses to hear the matter until there is proper preparation. It is the obligation of the lawyers to do whatever is necessary in the particular case. Case management does not shift responsibility for preparation of the case to the judge. The parties' legal representatives should seek specific directions where problems are encountered and the judge should be presented with a precise draft order sought by way of solution to a particular problem not a problem and an invitation to solve it. If the mother's witness could not attend because of his mental state, attempts should have been made to obtain a statement from him and directions then sought if the parties could not agree as to how the evidence should be handled. If he was unavailable to give a statement, then a hearsay statement should have been presented by the mother and directions sought as to the appropriate reliance to be placed on it. Attention must be given to the issue of evidence that may be corroborative or alternatively give rise to doubt about important allegations. It is normally sensible to give thought to whether the police have records of domestic incidents and whether there may be material police witnesses.

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