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Family Law

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25 SEP 2008

CARE: Re H (Care Order: Contact) [2008] EWCA Civ 1245

(Court of Appeal; Ward and Lloyd LJJ; 25 September 2008)

The mother had a number of conditions that meant she required care. After the parents' separation, allegedly as a result of domestic violence, the mother refused to allow the father contact with the child, refusing to comply with court orders for contact. A few months after the separation the mother also ended contact between the child and the maternal grandmother, who until then had played a significant part in the child's life, not least because of the mother's health problems. The mother increasingly associated herself with a man who may have been related to her, and with whom she had a violently emotional relationship. The child was removed because of concerns about the violent disagreements between the man and the mother in front of the 9-year-old child. The child was placed with a temporary foster mother; the local authority proposal was that she should return to the mother on condition that the child had no contact with the man. The mother refused to accept this condition, and the local authority developed a care plan for long-term fostering. The child, now 10, was still expressing a strong desire to be reunited with the mother with whom, it was accepted, the child had a strong relationship. The child was also still refusing to have any contact with the father or the maternal grandmother. However, the judge made a care order, on the basis of a care plan for long-term fostering. He found that the child had suffered significant harm as a result of the mother's refusal to allow contact with either the father or the maternal grandmother. He also found that the child had been exposed to violent behaviour and threats by the mother and by the man, although these had resulted in a risk of emotional harm, rather than a risk of physical harm.

The judge had failed to consider the child's wishes in the light of both her age and her understanding. More importantly, the judge had failed to refer to the child's need to maintain the very significant relationship with and attachment to the mother. The judge ought to have taken on board the child's depth of feeling. The judge had erred in failing to perpetuate the fundamental importance of a relationship and a life with a parent if at all possible. There was no evidence that the child would begin to have contact with the grandmother and the father if she remained in care. The care order was to be replaced by a residence order to the mother, but with a supervision order for 12 months. If the man's influence continued to cause harm, that might be a reason for coming back to court.

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