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Family Law

The leading authority on all aspects of family law

14 JUN 2007

CIVIL PROCEDURE: Re S (Omission from judgment) [2007] EWCA Civ 694

(Court of Appeal; Thorpe and Wall LJ, Hedley J; 14 June 2007)

The mother, the father and their children lived at the home of the paternal grandparents. After incidents of domestic violence perpetrated on the mother by the grandparents, the mother left with the children. An application for contact was made by the father. The mother was not opposed to contact with the father, but would not contemplate any contact with the paternal grandparents. This posed unusual difficulties in that the father had severe learning difficulties and was incapable of independent living. He would not be able to accommodate contact without specifically support from his parents.

There were specific findings of fact in the contact proceedings that the paternal grandparents had taken part in and encouraged an assault on the mother in the family home, with the children present, and that the paternal grandfather had instructed the father to hit the mother, which he did. The judge did not make any reference in his judgment to the evidence that had been given by a psychologist during the proceedings. The father requested permission to appeal directly after judgment had been given, on the ground that the psychologist's evidence had not been referred to in the judgment. Permission was refused.

The fact that the judge had not referred to the psychologist's evidence was a long way from saying that he failed to take it into account or that he reached findings that were inconsistent with the evidence. The judge was entitled to make the findings he had made.

Permission to appeal would be granted but the appeal would be dismissed. It was not appropriate to ask for permission to appeal immediately on the basis that the judge has not dealt with the issues in question. Counsel should point out the alleged deficiency and invite the judge to give a supplemental judgment.

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