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09 SEP 2014

Re K [2014] EWCA Civ 1195

Re K [2014] EWCA Civ 1195
(Court of Appeal, Ryder, Vos LJJ, Richards J, 2 September 2014)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 1 FLR 95]

Contact – Longstanding litigation regarding contact with the father – Transfer of residence unsuccessful – Urgent hearing directed removal of one child into foster care – Appeal

The full judgment is attached below

The appeal from an order, during the course of long-standing private law contact proceedings, directing the placement of a 14-year-old boy in foster care was successful.

The parents of the two boys, aged 14 and 12, had an acrimonious relationship following their separation. The boys lived with the mother and their step-father and pursuant to a contact order initially had overnight contact with the father until that arrangement broke down. When a reinstated contact order was made it provided for a conditional and temporary residence order in favour of the father in the event that contact did not occur.

The mother applied to suspend the contact order and the implementation of the conditional residence order. The father cross-applied to enforce the order. The mother’s application was refused and the judge directed a s 37(1), Children Act 1989 investigation into the boys’ care. The judge thereafter sought to activate the conditional residence order but the boys absconded from the father’s home.

When the matter returned to court the judge ordered the boys’ removal from their mother’s care. The 14-year-old boy was placed with foster carers under an interim care older while the 12-year-old was placed with his father subject to a child arrangements order. They were separated for the first time in their lives. Contact with the mother was suspended for 3 weeks. A further request was made for a s 37 report and a further hearing was listed.

Due to a lack of parental agreement with the order a recovery order had to be made and the boys’ removal took place late at night with police in attendance. The circumstances were distressing to all involved. The mother’s representatives described the removal as ‘violent’.

The mother appealed. The Court of Appeal emphasised that in urgent without notice hearings which did not have the benefit of an advance case management hearing, a case management hearing should be heard within the hearing before the substantive issues were heard so that everyone knew what the issues were to which the evidence would be relevant and what the ultimate problem was to be solved. In this instance there had been no analysis of the purpose of the hearing and what the issues to be decided were. At no stage had the available options been identified and examined. That lack of analysis vitiated the judge’s conclusion that the balance of harm favoured a foster placement for the older boy.

It had been necessary for the court to undertake a broad proportionality evaluation of the comparative welfare analysis of the options for each of the boys on the facts of the case but that could not have taken place as the options had not been identified. That error had been fatal to the decision for the older boy.

The appeal was allowed and the case remitted to a High Court judge. A full case management hearing was directed and it would be necessary for the judge to consider representation of the boys.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.

Neutral Citation Number: [2014] EWCA Civ 1195

Case No: B4/2014/1880

ON APPEAL FROM the Family Court at Swindon
Her Honour Judge Marshall

Royal Courts of Justice
Strand, London,
Date: 02/09/2014


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In the Matter of K (Children)

HW and DW Appellants
- and -
GK [1]
The Children by their Children’s Guardian [2]
Wiltshire Council [3]

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Mr Peter Kent (instructed by Mowbray Woodwards) for the Appellant mother
The Respondent father appeared in person
Ms Tanya Zabihi (who did not appear below) (instructed by Withy King Solicitors) for the Children by their Children’s Guardian
Ms Margaret Pine- Coffin (who did not appear below) (instructed by the County Solicitor) for Wiltshire County Council
Hearing date: 30 July 2014
- - - - - - - - - - - - - - - - - - - - -

Please see attached the full judgment  

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