|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C (A Child) , Re  EWCA Civ 1412 (21 November 2013)
Cite as:  1 FLR 1239,  WLR 2182,  1 WLR 2182,  EWCA Civ 1412,  1 FCR 239,  Fam Law 461,  WLR(D) 449
[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report:  1 WLR 2182] [View ICLR summary:  WLR(D) 449] [Help]
ON APPEAL FROM a County Court
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RYDER
LADY JUSTICE MACUR
| In the matter of C (A Child)
|- and -
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Madeleine Reardon (instructed by Cafcass Legal) for Cafcass
The Respondent did not appear and was not represented
Crown Copyright ©
Lord Justice Ryder:
a. He was returning to (the area of the child's nursery and home) on 20 March 2012.
b. He was intending to see his son without mother's consent.
c. He had "threatened on more than one occasion that he had a right to see his son".
d. He had been threatening and abusive towards mother.
e. In that context, "he may take him (the son) without consent".
f. There were concerns about his mental health and lack of (local) accommodation.
"The burden on those who apply for ex parte relief is, as indicated in Memory Corpn plc v Sidhu (No 2)  1 WLR 1443, a heavy one. And, as the same case shows, the duty of full and frank disclosure is not confined to the material facts: it extends to all relevant matters, whether matters of fact or of law. As Lord Donaldson of Lymington MR said in In re M and N (Minors) (Wardship: Publication of Information)  Fam 211, 229, it cannot be too strongly emphasised that those who seek ex parte injunctions are under an obligation to make the fullest and most candid disclosure of all relevant circumstances known to them."
"In the first place, "to grant an injunction without notice is to grant an exceptional remedy": Moat Housing Group South Ltd v Harris  EWCA Civ 287,  QB 606 at para . "As a matter of principle no order should be made in civil or family proceedings without notice to the other side unless there is a very good reason for departing from the general rule that notice must be given": Moat Housing at para ."
" (i) concerns about the father's mental health
(ii) allegations of domestic violence
(iii) allegedly threatening behaviour on the part of the father"
It is to be noted that, very properly, the court identified the issues as concerns or allegations that is, they had neither been proved nor accepted by father. The issues would have been identified by Cafcass as a consequence of their duty to provide a risk assessment for the court under section 16A of the 1989 Act. There are no particulars and no direction was given for the parties to file evidence about the particulars.
"discussed with the Court that because there was a factual dispute further information should be obtained and a finding of fact considered"
"Following discussions with the Service Manager it is felt that [mother] should not subjected to an un-necessary intervention at this stage and not least as she is now understandably opposed to any future contact"
"father's lack of understanding of the impact of his offences on his child in relation to his risk taking behaviours, domestic violence, risk of possible child abduction; the father's mental health and related issues, public disorder and so on."
Lady Justice Macur
Lord Justice Sullivan