Wednesday, 24 October 2012

W Children [2012] EWCA Civ 1307

Father applying for residence... mother appealing on the basis that the court is refusing a finding of fact on issues related to domestic violence. Appeal rejected. Mothers allegations grew as the nature of the case changed, and mother did not object to contact. W (Children) [2012] EWCA Civ 1307 (for full text)
 Paragrah 10 of the judgment holds the core:
 10. Counsel then took instructions and returned to the judge and, in a long passage which I need not read in full, counsel for the mother made it plain as follows:
"My client's position is this. That notwithstanding any of the allegations that she still generally believes are true that she would like the children to see their father in a controlled environment and if he is able to behave appropriately and have a father, child relationship with them she would wish contact to progress."
And she then set out how that would happen. Counsel told the judge: 
"She understands that that would mean drawing a line in the sand in respect of her allegations both the ones she has detailed in her statements to the court and those she has raised today in respect of dad's conduct towards the children specifically." 
And I omit further words: 
"She is very clear she wants the children to enjoy their relationship with their father." 
I omit more passages:
"Your Honour, as I say, my client does understand that this will be drawing a line under her allegations. She is not withdrawing them in the sense that she does not accept they are fabricated and if I could say that does not strike us as a situation where this woman genuinely believes what she is saying. Whether that is objectively how events have occurred is a different matter and I know that it is a point that troubles my learned friend."
 ...and paragraph 26 explains the judges' refusal of the mother's appeal:
26.Treating this as an exercise of discretion, Ms Earley attacks it as being plainly wrong. In my judgment it was plainly right. The judge was fully entitled to look at delay, to look at the way of the mother's allegations of bullying had gradually grown as the case progressed, and to have regard to the fact that the mother was perfectly happy to leave these children in the father's care unsupervised and unsupported for weekends and over holiday periods. She consented to all of those orders. She was aware of the effect of the compromise in August when she agreed those orders. She did not then complain. She complained only when the case had changed and she was now the one seeking residence from father, who had the backing of the social services in retaining the children in his care.