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November 17, 2009
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
Lord Justice Ward:
The invidious task facing HHJ Hooper Q.C. sitting in the Worcester County Court on 6th October 2008 was to decide with which of two good parents a young boy was to reside. He preferred the father and now the mother appeals to us to reverse his decision or at least to send the matter back to the county court for re-hearing.
This couple were in a relationship for about 3 years. They separated early in 2001 when their son, L, who was born on 28th February 2009, was about 2 years old. L continued to live with his mother after the separation.
In many respects mother has not had a happy time since that parting of the ways. A very good friend committed suicide in 2005. A three year relationship with another man ended distressingly. Unfortunately all of this took a toll on the mother’s wellbeing. She took to drink to ease the stress and unhappiness. As the CAFCASS officer Dr Mary Cochrane reported on 15th August 2008:
“23. [Mother] accepts that she went through a phase of binge drinking to help her manage stress but she denies this placed L at risk of harm though she accepts that he did not like to see her the worse for drink. She agrees that the tragic death of her friend in 2005 resulted in her starting to drink and it continued periodically thereafter when she fell under stress. [Mother] says she stopped drinking in April this year and she has not had any alcohol for the last four months. She is willing to have a hair strand test or any other test the court might think appropriate.”
Father on the other hand has remarried and he and his wife Claire have a young son now about 2 years old.
The pleasing feature of this case is the amicable relationship that mother and father have maintained since their separation. L continued to live with his mother in Redditch but had generous staying contact with his father in Birmingham. This gave L a good start to life and he was undoubtedly making good progress at his primary school in Redditch.
Things changed in March 2008. The mother was “feeling physically unwell and mentally drained”. She was diagnosed with low folate levels which can cause exhaustion. Unbeknown to her she was pregnant with a baby to be born in December. Alas, she was binge drinking again. As she acknowledged, she could not cope. She did what a good mother would do: she turned to the father for help and asked him to take care of L.
For reasons I shall explain later, it is in my judgment of considerable importance in this case
AI Generated Summary
This UK Court of Appeal case concerns residence of L, a nine-year-old boy, between two capable, loving parents. After years living with his mother in Redditch and regular contact with his father in Birmingham, L moved to his father’s home in March 2008 when his mother, feeling unwell and unable to cope, sought help. At a meeting on 12 March, it was agreed L would live with his father for the foreseeable future, including a school change. The father issued residence proceedings on 20 March. CAFCASS officer Dr Mary Cochrane conducted a comprehensive assessment, found L bright and sensitive, recorded his mature wish to return to his mother (preferring 10/10 to that option), and recommended, on balance, a return. On 6 October, HHJ Hooper refused an adjournment, proceeded under the no-delay principle, and ordered residence with the father. On appeal, Ward LJ would have dismissed; however, Rix LJ and Moore-Bick LJ held the judge erred by discounting L’s wishes, failing to hear or reason against CAFCASS’s recommendation, and over-relying on settled status. The appeal was allowed and remitted for a fresh hearing before a different judge with a new CAFCASS report, with expedition.