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(Court of Appeal, Aikens, McFarlane, Briggs LJJ, 6 September 2013)
When the parents separated the father brought contact proceedings and returned to court when the mother refused to make the child available for contact. The mother's mental health deteriorated and a serious incident took place resulting in her being charged with possessing a bladed article and harassment of the father. The mother was admitted to a hospital and the father was granted residence. The child lived with the father for 6 months until the mother was discharged. The father returned the child to the mother's care and the mother assured him she would co-operate with contact.
When the mother prevented contact the father brought enforcement proceedings and a penal notice was attached to the order. Contact still did not take place. A number of further hearings took place and expert evidence was prepared by professionals involved. There were significant delays due to professionals being involved in the case and being replaced for a variety of reasons, during the course of which there was a lack of contact between the child and the father.
During proceedings there came a point when the child said she did not want to see her father. The father applied for a residence order and for contact. The judge found that the child loved her father but a line needed to be drawn under the proceedings and despite the father submitting alternative proposals for contact none of those involved believed it could work. The mother continued to blame for father for the proceedings which reduced the chance that she would co-operate. The judge made a residence order in favour of the mother and an order for no direct contact with the father. The father appealed.
The appeal was allowed and the father's application was remitted for re-hearing. The judge had erred in considering whether to attach a penal notice to the contact order. A judicial discretion existed in relation to whether a contact order should be made not whether a penal notice should be attached.
On the facts of this case the entire process had violated the procedural requirements enshrined in Art 8 of the European Convention and as a result the family life rights of the father and child had been violated. There was nothing to support a finding that that interference with their family life rights had been necessary or proportionate in order to protect the health or rights and freedoms of others. There had been no reason to limit the relationship yet the court concluded it was appropriate to deny the father and child any form of direct contact.