A father has been allowed to apply for contact with his children after successfully arguing he had been denied a fair trial at a directions hearing.

The case involved a man who had been involved in an ongoing battle for contact with his two children.

They had originally stayed with him during holidays and occasional overnight visits until their mother alleged that he had harmed them.

While there was no evidence of abuse, a psychological assessment revealed that the father suffered from overwhelming emotional dysregulation during times of stress, which led to him destroying property.

A directions hearing took place, but the father didn’t attend. The judge ruled that the father must undergo two types of therapy before he could have unsupervised contact with the children.

The judge stated that the father could not make a further application for contact until March 2020 but said he could apply to vary the order.

The father had psychotherapy sessions which revealed no evidence that he suffered from emotional stress.

He applied to vary the order and during the hearing the judge said he didn’t find the father’s psychological evidence persuasive. He ruled there was no basis to reopen the hearing.

The father appealed the decision, claiming he had been denied a fair trial. He argued the hearing shouldn’t have taken place in his absence, that he wasn’t warned the court could make final orders if he did not attend and that the judge was wrong to dismiss his application to vary the order.

The Court of Appeal ruled in favour of the father. The judge at the directions hearing had been wrong to impose the order as the father had not been present.

The hearing had been listed for directions and the possibility of the order was only raised during the hearing itself. The father could not have known the judge might make such an order.

Rather than making the order, the judge should have adjourned for a further hearing.

While the judge’s assessment may have been correct, the correct procedure had not been followed. The correct course was to remit the case to another judge.

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Case Citations: RE N (CHILDREN) (2019) / CA (Civ Div) (Peter Jackson LJ, Baker LJ)

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