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Family Law

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23 MAR 2007

CONTACT: Re S (Contact with Maternal Grandmother) [2007] EWCA Civ 267

(Court of Appeal; Buxton, Wilson and Moses LJJ; 23 March 2007)

The mother had died shortly after the birth of the child and the child was in the father's care. The maternal grandmother, who was caring for the child's 14-year-old half-sibling, was granted leave to apply for contact with the child, and was eventually granted contact for 3 hours every alternate weekend. However, after the grandmother launched an application on the half-sibling's behalf for family provision from the mother's significant estate, the father appealed against the contact order. Eventually, under a mediation scheme the father and grandmother reached a settlement on terms that the estate pay out £30,000, adjustable in specified events, and on the basis that reasonable access to the child was agreed. Thereafter the grandmother and the half-sibling had almost no contact with the child; the father resisted contact on the basis that the financial settlement had not been concluded as agreed. The grandmother applied for a further contact order; the father had little notice because of problems with notification by the grandmother and by the court. Both parties appeared in person but with the benefit of a McKenzie friend. The order provided by consent that there be reasonable contact between the child and the grandmother and half-sibling, and went on to define contact on the basis of alternate Saturdays between 1 pm and 7 pm until a review to be held 5 months later. The father appealed on the basis that he had not consented to reasonable contact, and that the judge should not have made an order for defined contact, but should have adjourned to consider the father's point of view.

It may have been open to the judge to consider that the father's position at the hearing constituted consent to reasonable contact, but in any event the father had previously consented to reasonable contact. The judge could have adjourned the hearing, given that the father had been given little notice of the grandmother's application, but there were occasions when the child's best interests required a judge to be robust. The judge had been entitled to initiate a dialogue between the parties with a view to arriving at an entirely conventional arrangement for interim contact. There was perhaps a fine line between a judge's attempt to assist parties, particularly those who lacked professional assistance of their own, to arrive at a sensible solution of an issue relating to a child and an improper obstruction on his part of their right to present their case, but this judge's conduct fell on the legitimate side of the line.

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