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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W (Children), Re [2012] EWCA Civ 528 (02 February 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/528.html Cite as: [2012] EWCA Civ 528 |
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ON APPEAL FROM CAMBRIDGE COUNTY COURT
(HIS HONOUR JUDGE YELTON)
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE BLACK
and
SIR JOHN CHADWICK
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IN THE MATTER OF W (CHILDREN) |
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Mr Tom Urwin (instructed by Wilkins Solicitors) appeared on behalf of the Respondent Father.
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LADY JUSTICE BLACK:
"...during the 12 months or 15 months from the autumn of 2009 until the end of 2010 the father behaved in a very hostile and harassing way towards the mother."
"26. When deciding the issue of residence or contact the court should, in the light of any findings of fact, apply the individual matters in the welfare checklist with reference to those findings; in particular, where relevant findings of domestic violence have been made, the court should in every case consider any harm which the child has suffered as a consequence of that violence and any harm which the child is at risk of suffering if an order for residence or contact is made and should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact.
27. In every case where a finding of domestic violence is made, the court should consider the conduct of both parents towards each other and towards the child; in particular, the court should consider;
(a) the effect of the domestic violence which has been established on the child and on the parent with whom the child is living;
(b) the extent to which the parent seeking residence or contact is motivated by a desire to promote the best interests of the child or may be doing so as a means of continuing a process of violence, intimidation or harassment against the other parent;
(c) the likely behaviour during contact of the parent seeking contact and its effect on the child;
(d) the capacity of the parent seeking residence or contact to appreciate the effect of past violence and the potential for future violence on the other parent and the child;
(e) the attitude of the parent seeking residence or contact to past violent conduct by that parent; and in particular whether that parent has the capacity to change and to behave appropriately."
(i) The judge was very clear that he was making his determination with the findings he had made against the father at the forefront of his mind. He described them as serious but not so serious that there should not be any contact at all.
(ii) He took into account that since the recorder's contact order in January 2011 the behaviour had largely dropped off and the sort of harassment that was going on before had much improved. The judge attributed this to there being an association between the father's mental health and his behaviour and also to the father having been agitated because he was not having contact. He thought that the father was now better than he had been and he was also of course seeing the children.
(iii) The judge was conscious of the need for caution until "the father has proved that he can behave himself and that contact continues to go well".
(iv) He also recognised the impact upon the mother of the father's past behaviour in that he identified the need for the mother to have the reassurance that the father can behave properly as one of the reasons why contact should not jump immediately to unsupervised contact not based on the centre.
(v) He delayed the start of the trips out from the centre for three months until November 2011 so that more time would be permitted to demonstrate the father's ability to behave properly. If there were to be a problem during that time he made it clear that the mother could apply again for reports to be commissioned.
SIR JOHN CHADWICK:
LORD JUSTICE THORPE:
Order: Appeal allowed.