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Family Law

The leading authority on all aspects of family law

22 MAY 2009

RESIDENCE: Re R (Residence Order) [2009] EWCA Civ 445

(Court of Appeal; Ward, Rix and Moore-Bick LJJ; 22 May 2009)

Following the separation of the parents, when the child was about 2 years old, the child lived with the mother, with generous contact to the father. During a particularly stressful period in her life the mother began to drink heavily. When the child was nearly 9 the mother asked the father, who now had a wife and another young child, to take care of the child for a time, because she could not cope. It was not clear how long the arrangement with the father had been intended to last, but certainly the mother was expecting the child to stay with the father for a number of months, and knew that he would therefore need to change schools. Almost immediately after the child came to live with him, the father sought a residence order; the mother opposed the residence order. The mother had discovered that she was pregnant; she was not drinking and had agreed to submit to any tests thought necessary. The Cafcass officer recommended, on balance, that the child should return to live with the mother, whom the child had lived with alone since he was 2, even though he had settled in well with the father over the past 5 months. The officer did not attend court and did not give oral evidence. The child, now 9, had said that he would prefer to return to the mother, although he acknowledged he was happy with and loved the father and the father's new family. The father, who appeared as a litigant in person, did not cross-examine the mother himself; instead the judge asked the mother certain questions, then asked the father if there were any other issues he wanted the judge to raise with the mother. The judge went on to grant a residence order to the father. The mother appealed, arguing that the judge had unfairly entered into the arena in support of the father, had erred in his treatment of the wishes and feelings of the child, and had been wrong to reject the recommendation of the Cafcass officer.

As more and more parties were forced to appear in person, so judges were frequently required delicately to maintain a level balance to the playing field. It must be left to the individual good sense of the judge to decide how and when to intervene. In this case the judge had preserved his neutrality, being helpful to the litigant in person but not hostile to the mother as witness. There was not the slightest chance that a fair-minded and informed observer sitting at the back of the court would have concluded that there was any possibility that the judge was biased. However, by a majority, the judge had erred in rejecting the Cafcass officer's clear recommendation, and also in rejecting the child's own views, without any new evidence or any reasoned challenge to either, and without having heard the officer's oral evidence. Unless there were strong reasons to do so, a judge minded to depart from the recommendation of an experienced Cafcass officer should test any misgivings with the officer in the witness box before reaching a final decision. A short adjournment to allow for the attendance of the Cafcass officer should have been feasible. Ward LJ dissenting, the case fell within the judge's discretion and there was no possible criticism of the judge. The judge had been correct to view the child's wishes as but one of several factors to which he had to have regard, and he had properly gone through the checklist. It was not the case that a judge must always call a Cafcass officer to give oral evidence if he was thinking of departing from the officer's recommendation.

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