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Court Must Hear Evidence Before Deciding

15.12.2009

Cases involving the custody of children are often very contentious and need to be approached with sensitivity and care. Recently, the Court of Appeal was called upon to rule in just such a case, the critical issue being whether the judge in the family court should have taken account of the wishes of the child involved.

The circumstances were that the child, a boy of 10, had lived with his mother following the separation of his parents. When he was nine, she suffered from exhaustion to the extent that she could no longer look after him, so he went to live with his father. The mother subsequently became pregnant and the boy’s father sought a residence order.

A Children and Family Court Advisory Support Service (CAFCASS) officer prepared a report on the case and recommended that the boy should return to live with his mother. This was also the preferred course of action of the boy himself. However, when the father’s application for custody was heard, the views of neither the CAFCASS officer nor the boy were heard by the court. The judge ruled that the boy was settled with his father and ordered that he should remain with him.

The mother appealed, arguing that the judge should have heard evidence from the boy and the CAFCASS officer.

The Court of Appeal agreed, holding that the judge had erred in not taking account of this evidence. He had been too heavily influenced by the fact that the boy had settled well with his father.

Says Partner, Philip Dimond, head of Family Law: “Sometimes, as in this case, the judge just gets it wrong and an appeal is necessary to rectify the decision. If you are having problems over any family law issue, contact us for advice”.

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