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Family Law

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12 FEB 2013

RESIDENCE: AMV v RM [2012] EWHC 3629 (Fam)

(Family Division, Baron J, 28 June 2012)

When the parents' marriage ended the mother and her two young children initially lived with the maternal grandparents in their 3-bedroom home. The mother now claimed to be living in her own property which was not far from the grandparents' home. The father alleged that the mother and children were actually living with the grandparents and that theirs was not suitable accommodation for the family.

At a hearing to determine the issue of where the mother was living the District Judge of her own motion decided to conduct an unannounced visit of the two properties in order to assist in her determination. The mother and her legal representative were given 15 minutes to decide whether they agreed with the proposed course of action. The mother agreed although she had not been able to contact the grandparents to inform them of the visit.

The parties travelled to the properties and a thorough search was conducted including opening drawers and cupboards, even looking in wastepaper baskets. The judge concluded that the mother and children were living in their own property.

The mother appealed. The entire procedure was wholly unacceptable. The decision to visit the properties was made so soon after the opening of the hearing that time was not available for a proper consideration of the implications. The mother had to agree for fear that a negative response would draw an adverse inference from the court. This had been prima facie a breach of the mother's Art 6 rights under the European Convention. In addition the Art 8 rights of the maternal grandparents had been breached. The method used by the District Judge was to be deprecated and should not occur in the future.

 

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