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Family Law

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Court of Protection Practice and Procedure Conference 2016

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16 NOV 2012

RESIDENCE: Re K (Residence) [2012] EWCA Civ 1306

(Court of Appeal, Ward, Aikens, Black LJJ, 25 July 2012)

In proceedings in relation to four children aged 14, 13, 7 and 4 concerns were raised regarding the turbulent relationship between the parents and allegations were made by both parents about each other. The children had also complained of the mother's conduct towards them.

The mother had been the primary carer of the children until 15 months ago when following a domestic incident the mother was asked by the local authority to leave the home and permit the father to take over their care. The father made an application for a residence order and the mother continued to have supervised contact with the children.

At a review hearing the judge, taking into account evidence from the local authority that should residence not be secured with the father care proceedings would be initiated, decided to continue the residence and contact arrangements and ordered that unless the mother brought an application in the following 12 months they would become final. Neither parent gave evidence and the judge refused to instruct a children's guardian or psychologist.

The mother appealed. The judge's decision not to appoint a further expert was one that was open to him. However, he had been overly pragmatic and not entirely fair to the mother in his acceptance of the father's allegations which were supported by the local authority. Further developments since that hearing meant that new allegations would need to be tested before the county court judge. The mother was now only seeking residence of the two younger children and would not contest the residence of the older two children. Appeal allowed.

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