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Marshall v Marshall [2005] EWCA Civ 641

Refusal of application for contact overturned, as father had been denied a proper hearing.

Marshall v Marshall [2005] EWCA Civ 641

Court of Appeal: Thorpe, Smith and Wall LJJ (5 May 2005)

Refusal of application for contact overturned, as father had been denied a proper hearing.

This case concerned a mother and father, married in April 1999, and their son, born in June 2000. The parents separated in July 2001; in July 2002, both parties were convicted of VAT fraud, and the father was sentenced to four and a half years' imprisonment. In October 2003, the mother gave birth to a child by her current partner; and, in November 2003, the father applied for contact in respect of his son.

CAFCASS was requested to prepare a report on the issue of contact; but, for various reasons, the report was not submitted to the court, and the judge instead ordered the mother to file a medical report and a statement setting out her allegations relating to the father's behaviour and its relevance to the issue of contact. Ultimately, a jointly commissioned psychological report, which alleged that the mother was suffering symptoms of post-traumatic stress disorder but failed to identify the life-threatening incident on which the disorder was founded, was placed before the court. Further, the mother filed a statement in which she asserted that their son regarded the mother's new partner as his father, and that she did not want the father to be involved in their son's upbringing.

On the basis of the psychological report, and with no CAFCASS report, no statement from the father and no oral evidence, the judge dismissed the application for contact, and refused an application by the father for an oral hearing at which the allegations made by the mother could be tested and the validity of the psychologist's assessment examined. The father appealed.

Held, allowing the appeal, that the judge had acted prematurely and was plainly wrong to dismiss the father's application at this stage. The mother's avoidance of the CAFCASS officer and her determination to allow the son to treat her current partner as his father were potential warning signs that the father was being deliberately airbrushed out of the child's life.

There needed to be a proper investigation to ensure that the welfare of the child had fully been taken into account before any conclusion was reached. While there were, of course, cases which a judge could resolve on the papers and on submissions, such a course was usually only appropriate when the written evidence was complete; in this case, it plainly was not, and the father was effectively denied a proper hearing, and this was not acceptable.

Read the full text of the judgment here