MH (A CHILD), Re [2017] EWHC 691 (FAM) (13 March 2017)

Posted on Friday, April 28th, 2017

The case concerned an application by a mother for permission to appeal an order made by HHJ Hughes QC in Children Act proceedings concerning the parties’ daughter, M (DOB 04/02/15).

The parties had separated before the child was born.  Initially there were proceedings as the father had concerns about the mother abducting the child to her home country, Poland.  Children Act proceedings then took place in respect of child arrangements.  The parties had both been represented by Counsel during the initial contested hearing in August 2016, and a preliminary ruling was given on 27/10/16 following written submissions.  Both Counsel then withdrew and the parties acted in person at the final hearing on 22/11/16 arguing over the finer details of the arrangements.  The final order provided for the child to live with the father on alternate weekends and one other twenty-four-hour period every week, which was to be Tuesday, but there was to be flexibility for timings to change as the mother was a student.

The mother wished to appeal the inclusion in the recitals of the final order that the parties had agreed that “the child would live with the mother and father”.  She stated this was not agreed and that she would rather the order said that the child lives with her and spends time with the father. This was due to the father being controlling and aggressive and concerns that the child could suffer emotional harm if she did not have a secure base with one parent.  Furthermore, the CAFCASS officer had not recommended the order made.

Mr Justice Baker was not persuaded that the Judge was wrong to make the order that she did and commented that, where a child is to spend substantial amounts of time with both parents, then it did not really matter what terms were used, and the phrase “live with” was frequently used and encouraged in those circumstances, to be non-discriminating between the parents and to give a message to the child that both parents were committed to her.

Mr Justice Baker did however state that the Judge was wrong to record the mother as agreeing to it.

The order had also included detailed and complex provisions regarding holiday contact, including travelling abroad, and the mother, in her appeal, raised three issues in respect of those.  The first issue was whether the language of the order allowed the mother to take long enough trips to Poland with the child in view of the father’s mid-week contact.  The second issue was that order was requiring the mother to fix holiday dates too far in advance and she needed more flexibility. The third issue was that the summer holiday contact ordered was not what was agreed and the mother stated that the period (14 days) was too long for the child to be away from her at this stage and that the father himself only had limited holiday time and so the child would have to be placed in alternative care whilst the father was at work.

Mr Justice Baker was not persuaded that the Judge was wrong on any of the issues and commented in respect of the first issue that the Judge had intended that if the father was compensated with contact at other times then the mother would be allowed to take the child to Poland for longer periods.

In conclusion, Mr Justice Baker refused permission to appeal, save on the point that the mother did not consent to the order for the child to live with the father. Appeal on that one point was subsequently allowed and the recital of the order was to be amended to show that the parties were agreed that the child shall spend time with both parents but they were not agreed as to whether the order should express in the terms that the child “will live with her mother and with her father”.

The full judgment can be read here.

If you have any questions about this summary case law you can contact Amanda here.

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