Tuesday, June 2, 2009

A Child's Wishes

In the recent English Court of Appeal case R (A Child) [2009] EWCA Civ 445 a mother appealed against a residence order in favour of the father. A brief history of the case was the parents had separated in 2001 after a relationship of about three years when the child was nearly two. The father had remarried and the child lived with the mother. In 2008 the mother was suffering from drink problem brought on by the suicide of a good friend and approached the father for help as she felt she could not cope. It was agreed that the son should live with the father given the mother’s problems. Shortly after wards the father applied for residence which was granted despite a CAFCASS report recommending that the child should live with the mother.

The mother appealed on the basis that the judge i) had lost impartiality in questioning the mother; ii) erred in his treatment of the child’s wishes and iii) had been wrong to reject the CAFCASS recommendation. All three judges agreed point i) that the judge had not put any pressure on the mother with his questioning.

There was dissent between the judges on point ii) and iii). Wall LJ said "He [the judge] was in my judgment correct to treat the wishes as but one of the several checklist factors to which he had to have regard and he properly went through the checklist. " He went on to say the CAFCASS officers recommendation “on balance, I think L should return to live with his mother” was not strong and the "judge was well able to conduct his own evaluation of the relevant consideration."

This was countered by Rix LJ:

"in my judgment, he [the judge] has erred in more than the balancing of the weight of various check-list factors. He has erred essentially, in setting on one side the firm evidence of the child’s own wishes, and in rejecting the CAFCASS reporter’s own clear recommendation, in favour of a return to residence with the mother, together with the reasons given for both. He has not done so because of any new evidence or of a reasoned challenge to the opinion of Dr Cochrane [CAFCASS officer]. He has simply critically discounted the child’s wishes, and essentially ignored Dr Cochrane’s recommendations and conclusions, and has done so without hearing either. The CAFCASS reporter is, to a very great extent, the eyes and ears of the court, especially where the child is concerned, but the judge has not “listened” to the child, and he has ignored the reporter."

Moore-Bick LJ agreed with Rix LJ that there should be hearing before a different judge and that another CAFCASS officer should be asked to prepare a fresh report for that purpose.


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