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S (A Child) [2010] EWCA Civ 705

Appeal by father against an order that provided for a child to be ‘cared for’ by him at various days and times. Appeal allowed.

L was 6 years old. Her parents separated when she was 15 months. At a hearing before HHJ Hamilton, the father sought a shared residence order and the mother a sole residence order.   Much of the two day time estimate was used for negotiation between the parties but a full agreement was not reached and the judge adjudicated on the outstanding issues late on the second day.

The order made provided variously that "the father shall have the care of L", "the care of L within the school holidays shall be arranged as follows", "L will be cared for by her father", "L will spend Christmas 2009 with her father, and "L may be in the care of her father for such further and alternative periods that may be agreed in writing". The father appealed. 

Thorpe LJ held that there was nothing in the statute, and in particular in the language of s8(1) Children Act 1989,  that allowed the court to impose provisions as to one parent or the other 'caring' for  or 'having the care of' a child other than in the form of a contact order.   It was not permissible to use a prohibited steps or specific issue order. 

Thorpe LJ also restated the principle enunciated by Ward LJ in Re B (a child) [2001] EWCA Civ 1968 that "a contact order cannot be made unless it can be attached to a residence order providing there for the child to live with a person". 

The appeal was allowed and the order set aside. The matter was remitted to the county court. As the practical arrangements enshrined in the order were working well the court expressed the hope that a further hearing could be avoided.

Summary by Ayeesha Bhutta of Field Court Chambers


Case No: B4/2009/1791
Neutral Citation Number: [2010] EWCA Civ 705

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 23rd February 2010

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( DAR Transcript of
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Mr Duncan Brooks (instructed by Pro Bono Bar Unit ) appeared on behalf of the Appellant.

Mr Paul Mallender (instructed by Frances Lindsay and Co Family Law) appeared on behalf of the Respondent.
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(As Approved by the Court)

Crown Copyright©

Lord Justice Thorpe:
1. We are reviewing proceedings in the Reading County Court which came on for hearing before HHJ Donald Hamilton on 11 and 12 June.  The case before him concerned a girl named L, who is six years old.  Her parents cohabited but did not marry.  They were together at the date of her birth and separated when she was about 15 months old.  Thereafter they have in differing ways shared her life and the responsibility for her upbringing. 

2. The applications which were before HHJ Hamilton are unfortunately not in any of our bundles.  We are informed by counsel that there was an application by the mother for a residence order and an application by the father for a shared residence order.  For that hearing the mother was represented by Mr Mallender of counsel.  The father was unrepresented but had, as a McKenzie Friend, somebody from the respected organisation Families Need Fathers.  It seems that everybody acted with the laudable objective of arriving at a consensus which would spare the parties the trauma of a two-day final hearing and allow the judge to launch this latest stage of L's upbringing with the desirable parental consent that had escaped them since the issue of their competing applications.  There are many instances in which the pursuit of an accord extends rather than reduces the duration of a final hearing.  So there were warning signs when at the end of the first day and late in the day the judge adjourned the case over without any consensus having been reached. 

3. Things did not proceed promisingly on the second day.  All sorts of issues escaped agreement and the judge found himself, I surmise not without a degree of vexation, delivering an extempore judgment late on the afternoon of Friday 12 June. 

4. The order which resulted bears the hallmarks of this fruitless pursuit of accord.  So there are no less than 15 paragraphs of recitals upon the parties agreeing this and on the father agreeing that until we arrive at the paragraphs of order.  There are nine paragraphs of order and the structure and the extent to which the crucial paragraphs were within or without the judge's jurisdiction lies at the heart of this appeal.  Before I consider the point of law, I record that the father was by no means satisfied with his experience during the two days of trial before HHJ Hamilton.  Unfortunately he left the building at what seemed to be the conclusion of HHJ Hamilton's judgment only to find that there was a resumption initiated by Mr Mallender, who wanted a ruling as to when contact for father's time was to begin on the following day.  When the father was alerted to this he found it difficult to rejoin since by then the court doors had been locked.  When he finally gained admission, the judge was in the course of delivering a further brief judgment, which is reflected in a second order in manuscript written and signed by the judge.  It seems that when making that second little order the judge reserved the case to himself, but that reservation does not appear in the short manuscript but in the typed order which embodies the rulings given by the judge during the course of his 60-paragraph judgment. 

5. The father's dissatisfaction led to the issue of a notice of appeal on 21 July and that was considered at an oral hearing by Wall LJ on 2 December.  He adjourned the permission application for oral hearing on notice with appeal to follow and that is the hearing that has been listed before us today with a time estimate, an ungenerous time estimate, of an hour and a half.

6. The father, as a consequence of the judge's ruling, has been able to achieve the services of the Pro Bono Unit, and Mr Duncan Brooks of counsel on 17 February delivered an admirably clear skeleton argument to supplement and essentially replace that which the father had filed as a litigant in person.  His full skeleton was supported by what he described as a skeletal summary and by a chronology.  That attracted a response from Mr Mallender, to which there was a reply from Mr Brookes and finally a rejoinder from Mr Mallender. So the points that must be decided were very fully rehearsed in these written exchanges.  So we were not obliged to ask Mr Brooks to say very much in amplification of his clear submissions.

7. This is his primary point.  Paragraph 1 of the order provides: "The father shall have the care of [L]..."  Slightly different language in paragraph 2: "The care of [L] within the school holidays shall be arranged as follows:".  In paragraph 2c the language moves into the passive: "L will be cared for by her father".  Then in d "L will spend Christmas 2009 with her father". And in paragraph 4 the language becomes: "L may be in the care of her father for such further alternative periods as shall be agreed in writing"

8. Mr Brooks makes the fundamental submission that the court simply has no jurisdiction to issue orders in such terms.  He reminds us of the language of section 8 of the Children Act 1989, subparagraph (1) of which reads:

" In this Act --
'a contact order' means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;

9. As Ward LJ observed in paragraph 9 of his judgment in the case of Re B (A Child) [2001] EWCA Civ 1968, necessarily the contact order cannot be made unless it can be attached to a residence order providing there for the child to live with a person.

10. Moving on within the same subsection, a residence order is defined as "…an order settling the arrangements to be made as to the person with whom a child is to live".

11. So those are the court's only powers and there is nothing within the statute to enable a court permissibly to impose provisions as to one or other parent either caring for a child or having the care of a child or dividing a holiday other than in the form of a contact order. 

12. Mr Mallender sought to found this language in paragraphs 2 and 4, not as a residence or contact order but as a specific issue order.  Mr Brooks has a knockout response to that.  Paragraph 9(5) (a) of the same statute says:

"No court shall exercise its powers to make a specific issue order or prohibited steps order --
(a) with a view to achieving a result which could be achieved by making a residence or contact order"

13. So the point of law that Mr Brooks advances seems to me entirely well-founded.  He has very responsibly drawn attention to a very recent report of a judgment of Munby J in the case of Re N.  Although he heard the case on 17 July last, it only appeared in the specialist reports at [2010] 1 FLR 272. There the parties had reached an agreement, a comprehensive agreement, one of the terms of which was that their child should spend time with each of them. The father who was trying to renege from the consent order had suggested that such language might not be binding, in respect of which submission Munby J said at paragraph 19:

"At the outset of the hearing there was a certain amount of discussion. The parties sought time to discuss matters out of court.  During the course of the discussion in court I observed that the process of negotiation in places such as this might be more productive if the parents focussed on discussing how N was to 'spend time' with each of them rather than concentrating initially on the issue of who should have residence and who should have contact. Indeed, I observed that it might even be appropriate for the order to be expressed in such terms and I ventured the view -- which was never challenged by anyone at any stage of the hearing either then or later -- that there was no obstacle in law to an order being expressed in such terms."

14. That observation is understandable in the context of the issue that Munby J was resolving, and indeed I am in no doubt that if parents reach a contractual agreement as to how their child's time should be shared between them, there is no reason at all why that consensus should not be put before a judge for his approval if the judge is exercising or about to exercise statutory powers and responsibilities at a listed hearing and there is no reason at all why the judge could not endorse those terms, perhaps scheduling them to an order if order be needed.

15. But that does not provide any answer to Mr Brooks' fundamental submission. There can be no doubt at all that this couple did not reach a consensus in the Reading County Court.  Had they reached a consensus, the judge would not have been obliged to deliver a lengthy extempore judgment deciding the issue one way or the other and generally against the father's submissions.

16. This therefore being an order imposed by the court on the parties, in the absence of a compromise it must find its jurisdictional foundation within the statutory language and that it cannot do.  Accordingly, I would set aside an order which I believe to be impermissible and remit the case for further hearing in the Reading County Court.  That is of course a very regrettable conclusion.  Mr Brooks endeavoured to ask us initially to exercise our discretion to make a shared residence order, which it might be said the arrangements enshrined at paragraphs 1, 2 and 4 represent.  They are to all intents and purposes a good illustration of a modern shared residence order operating in detail.  Had there been a fuller investigation of all the outstanding issues, the avoidance of re-trial by the exercise of discretion in this court would have been a preferable conclusion, but there was simply not sufficient investigation nor sufficient process to enable us to resolve issues which crucially call for the testing of the respective cases by the processes of cross-examination and particularly the weighing of the contribution of the CAFCASS officer. 

17. There is no doubt at all that all engaged in the process acted with the best of motives and in the end crafted an outcome which we are told by Mr Mallender has worked extremely well in practice, but very often in these cases where there is a head-on conflict between parents, one saying I want a sole residence order and I am not prepared to compromise, the other saying I want a shared residence order and I am not prepared to compromise, by far the quickest route to resolution is for the judge to hear the case out and deliver his judgment. 

18. Here in a sense conventional disposal of the issue was avoided for laudable but misguided reasons.  It is still open to these parents to avoid the expense and stress of retrial. They seemingly have confidence in the practical outcome of the trial below.  Neither has suggested for a moment that what has emerged has not worked smoothly for L's benefit.  There is really no need to litigate at length at retrial given the underlying strength of the present arrangements.

19. So there needs to be a greater measure of confidence each parent of the other and both in a good future.  It is unfortunate that it is only a word on one side or the other side that brings the case to this court and which threatens to take it back for re-hearing.  So I hope the parents will think very carefully before they continue this struggle.  There will obviously be excellent mediation facilities in the catchment areas.  Equally they could consent to a mediation within the Court of Appeal scheme and under the supervision of this court a mediator would be swiftly appointed and hopefully productively appointed  But I would, as already indicated, allow the appeal and set aside the order below. 

Lord Justice Moore-Bick: 
20. I agree. There is nothing I can usefully add beyond adding my encouragement to the parents to consider the fact that the order made by the judge has in practice proved to be very beneficial, and the same arrangements could be put in place, as my Lord has indicated, through a form of order which the court does have jurisdiction to make.

Lord Justice Aikens : 
21. I agree.

Order: Appeal allowed