The recent case of S-K (a child)  highlighted difficulties surrounding the application for permission to appeal Residence and Contact Orders. The three children in the case (aged 14, 11, and 7) moved from Nottingham to Essex with their mother in 2009, following the separation of their parents. Their father, who remained in Nottingham, applied for a Residence Order in 2010. This application was dismissed and a Residence Order was made in favour of the mother. A Contact Order was also granted, allowing alternate weekend contact to the father.
A Residence Order states with whom a child should live. A Contact Order sets out when a person, usually a parent or other family member, will see the child.
In 2012, the father once again applied to the Court for a Residence Order. By this time a CAFCASS Officer had been involved and was told by the children that they would rather live with their father.
CAFCASS (Children and Family Court Advisory and Support Service) is an independent organisation and its primary role is to ensure that the welfare and needs of the children are prioritised during proceedings.
In S-K (a child) , the CAFCASS officer raised concerns as to the understanding the children had on the impact of a move from Essex back to Nottingham. She believed the children had been pressured to move by the father. The father did admit telling the children that schools in Nottingham were better than schools in Essex. The recommendation of CAFCASS was therefore that the children should remain with their mother in Essex. This would maintain the status quo and stability for the children. It was further recommended for the contact arrangements to remain the same.
The Judge, at first instance, accepted that the children should remain in Essex with their mother. Perhaps controversially, he reduced father’s contact to one weekend in four.
The father applied for permission to appeal the entire decision. Permission was only granted, however, for appeal of the Contact Order. It was stated that the Court of Appeal would not go against the initial Judge’s findings as this was what had been deemed to be in the children’s best interests.
The Appeal Judge also confirmed that whilst the older children’s wishes and feelings had not been followed, this had been within her power. The Judge had approved the recommendations made by the CAFCASS officer relating to residence and made an order ‘of the Courts own motion’ relating to contact. Whilst the wishes and feelings of the children are important, the Judge does not have to be bound by them.
In relation to the changes to the contact order, permission was granted as neither party, nor CAFCASS, had sought the reduction that was imposed. It was agreed that the level of evidence had not been sufficient to reduce contact. It was therefore concluded that there was a good enough reason for the Contact Order to be appealed. It was suggested that the parties attend mediation to attempt to reach agreement prior to any further hearing.
For more information regarding contact or residence orders, or indeed appealing a contact or residence order that has been made by the courts, our team of experienced family lawyers can provide the advice and assistance you need. To discuss your individual circumstances further and obtain information on your options, do not hesitate to contact us.
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