After a judgment the parties sought to appeal.
Held: The judge had failed to make a finding on a critical issue in the case, namely whether or not the mother of the child concerned had ‘even if prompted only at a subconscious level, nevertheless deliberately engaged in alienation.’ Whilst some circumstances might require an application for leave to appeal direct to the Court of Appeal, the parties should normally always first apply for leave to the judge whose decision was to be appealed. Where possible the question of appeal should be addressed in advance, so as to allow the judge when giving his opinion to give appropriately detailed reasons. When judgment was given, an advocate ought immediately to draw the judge’s attention to any material omission of which he was aware.
The court discussed the need to re-examine the failure to enforce contact orders: ‘I reject [counsel’s] dismissive submission that the Strasbourg cases add nothing to the domestic jurisprudence. Those cases as they stand suggest that the methods and levels of investigation that our courts have conventionally adopted when trying out issues of alienation may not meet the standards that Arts 6 and 8 . . require. There are policy issues here that the Government and the judiciary may need to consider collaboratively.’
Judges:
Thorpe, Rix, Arden LLJ
Citations:
Times 30-Oct-2002, [2002] EWCA Civ 1736, [2003] 1 FLR 531
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Sahin v Germany ECHR 11-Oct-2001
When considering the issues of an adoption against the wishes of the parents, there is an apparent difference of emphasis between saying that the child’s interests are of ‘paramount importance’, and saying that they merely ‘may, depending on their . .
Cited – Sommerfeld v Germany ECHR 11-Oct-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; Violation of Art. 14+8; Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings . .
Cited by:
Cited – F v M FD 1-Apr-2004
The court considered the ‘ongoing debate’ about the court’s role in contact disputes. ‘this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact . .
Cited – In re W (A Child); AW v SW CA 30-Oct-2008
The father sought leave to appeal against an order made on his application for contact. The mother appeared to have encouraged great hostility in the children toward the father. The court had decided that the children were aroaching ages when they . .
Cited – ZM v JM; Re M (children) (fact-finding hearing: burden of proof); In re M (a Child) (Non-accidental injury: Burden of proof) CA 19-Nov-2008
When a court considered which of two parents might be responsible for a non-accidental injury to their child, what the court cannot do is decide that one parent is the perpetrator but that the other parent cannot be excluded as the perpetrator. . .
Lists of cited by and citing cases may be incomplete.
Children, Civil Procedure Rules
Updated: 08 May 2022; Ref: scu.177843