Pump Court Chambers

Appeal successfully dismissed – Re W-M (Children) [2015] EWCA Civ 1201

News 26th January 2016

An Appeal concerning an application to extend a supervision order and to enforce a contact order has been dismissed. The court held that the trial judge acted proportionately in limiting the written evidence of the parents and was not wrong in proceeding with the trial in the father’s absence. At a fact finding hearing in related care proceedings, Her Honour Judge Marshall concluded that the mother had given her three children pharmaceuticals that had been prescribed for her own use. The mother did not accept that finding, but was refused permission to appeal. The Court made child arrangements order for the children to live with the father with a one year supervision order. The two older teenage children stated they did not wish to have contact with their mother, but the mother was ordered one weekly session of contact with the younger child.

A few months after the hearing the father stopped the mother’s contact and the mother applied to the court to enforce the order. The matter came before Her Honour Judge Marshall for a final hearing at the time when the supervision order was due to end, and the local authority applied to extend that order for a further 12 months against the father’s wishes. The Father chose to leave the Court during pre-hearing discussions, as he found the situation distressing. He had provided a written statement to the court. The judge had previously directed that the parents’ statements should be limited to six sides of A4. A further supervision order for one year was made and mother’s contact was ordered at a fortnightly rate (according to the submissions of the local authority and the guardian).

The Mother was granted permission to appeal that order on the grounds: that by limiting the length of the parties’ statements the mother’s had not been granted the right to a fair trial; and that the judge was wrong in proceeding without the father as his evidence had not been tested under cross examination.

In summing up, the Court Appeal found that the mother had given an oral account of her evidence to the judge in the previous hearing, and had been able to set out her case in full. They also found the decision to limit the material put before the court was proportionate and that Under FPR rule 27.4(3), the Judge had the discretion to proceed without the father being present. Thus, the appeal was dismissed on both counts. Amy Ephgrave of Pump Court Chambers was successfully instructed on behalf of the local authority.

To view the judgment in full please click here.

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