England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND A STAY OF EXECUTION WITH APPEAL
TO FOLLOW IF GRANTED

		Royal Courts of Justice Strand London WC2 Thursday, 22nd November 2001

1. LORD JUSTICE WARD: This application comes before us for permission to appeal an order made by His Honour Judge Hamilton in Stoke-on-Trent County Court on 8th November 2001. Mr Dyer, who appears for the mother today, does not actually consent to the orders we would propose making, but his concession of the difficulties he faces makes my task much easier. I would grant permission to appeal immediately and deal with the substantive appeal.
2. The judge made this order that the child, M, will have contact with the mother as from 4 pm on Friday 10th November to 5 pm on Sunday 12th November, the mother to collect and return the child for that contact purpose. That dealt with the weekend after the order. Then paragraph 2 provides:

"Otherwise contact will continue on a rota basis as follows -

(a) Sunday 12 November to Sunday 19 November the child ..... shall have contact with the ..... father ..... until 5 pm when the ..... father shall deliver the ..... child to the ..... mother;

(b) Sunday 19 November to Sunday 25 November the ..... child shall have contact with ..... mother ..... until 5 pm when the ..... mother shall return [the child] to [his] ..... father;

(c) Thereafter contact continue on a weekly rota basis as per a) and b) above."

3. In addition to that the judge adjourned the matter for further directions, fixing Monday 11th February for that purpose. What he did not order for that purpose was a CAFCAS report. Furthermore he said, although this is not recorded in the order, that he reserved the case to himself. He made an order that the father pay the mother's costs.
4. In the light of the concessions made by Mr Byer, I can be quite quick with this judgment. This couple lived together but did not marry. The father was granted parental rights by agreement with the mother. The boy was born on 5th June 1999 so he is 2½ years of age. Unfortunately, the relationship broke down on 10th July 2001. He was then just 2 years. The mother left the home in which they had been living in order to live with her mother. She applied for residence and an order was made without notice to the father. He promptly applied for its discharge. At that hearing on 11th July His Honour Judge Tonking discharged the ex parte residence order to the mother and, in turn, made an interim residence order in the father's favour expressed to be until further order.
5. The next proceeding was on 18th July when the parties appeared before His Honour Judge Orrel. They came to terms which are recorded before us. They agreed that Judge Tonking's order of the previous week should be discharged together with the contact order that had been made in the mother's favour which was for reasonable contact with her. The parties agreed terms which they reduced to writing and signed, the first of which was that the boy should live with his father. He was to have certain contact specified with his mother until the end of July. The idea was that they should come back for a further meeting before the conciliation officer on 31st July.
6. For some reason which is not quite clear the court translated the agreement into an order so that on paper at least the court ordered that the boy should live with his father. That order may have been drawn in error. It does not much matter because the position in fact agreed, comes to the same thing as the order, namely that for the time being the boy's home, the place where he was to live, was with his father.
7. The mother became dissatisfied with the contact being afforded to her. She asked for extended interim contact. The district judge listed that before the court on 8th November. It was thought Judge Orrel would deal with it. In fact, Judge Hamilton took the case. I am not sure exactly which Judge Hamilton it is. We are told it is neither Judge Donald Hamilton, he of imposing physique, who sits a great deal in Birmingham and Coventry, nor is it His Honour Judge John Hamilton who ordinarily sits in Luton. I believe it is His Honour Richard Hamilton, recently retired from the Liverpool County Court. I hope he forgives my ignorance. He made the order I have recited.
8. It appears to me quite plain there are fundamental difficulties with that order. A contact order is defined by Section 8 to be an order requiring a 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, for that person and the child otherwise to have contact with each other. A residence order means an order settling the arrangements to be made as to the person with whom the child is to live.
9. It seems to me to follow that one cannot have a contact order without having first determined who the person is with whom a child lives because it is that person who has to allow the child to visit or stay with the applicant for the contact order.
10. A shared contact order - 7 days with one, 7 days with the next - is a creature unknown to law and for that reason ought to be discharged. It was not, as it might have been, a shared residence order, the power to grant which is expressly conferred by Section 11 (4) of the Act. Section 11 (4) is expressly confined to a residence order being made in favour of two or more persons who do not themselves live together. That was error number 1. Reading the judgment, it seems to me plain that the judge failed to distinguish in his own mind the difference between residence and contact orders. His language is, with great respect to him, confused. For example, he speaks of benefits of what he proposed in these terms:

"I think that having seven days contact and then a changeover is, indeed, likely to cause the least possible problem. First of all, it will give this young man stability. He will know that for this week he is living with mum, and the next week he is living with dad ..... " (Emphasis added)

11. The language portrays his confusion of the nature of the operation of the two orders.
12. There is a second flaw to his process of reasoning. This matter came before him for an extension of the mother's contact. She put forward - in this respect her proposal is the author of the judge's undoing - the request for equal contact. The judge acceded to that application even though she had indicated that if the court was not minded to go that far something less would suit her in the meantime. There had been debate as to whether it should be four days or five days in a fortnight. Suddenly the judge ruled seven. In doing so, effectively, he pre-determined the matter that was to be decided as to where the child should live and, in pre-determining it, he was wrong. He ought, in this case where there were disputes to try, to have ordered a CAFCAS report. That was an error. He gave no reason for ordering costs against the father. He seems wholly to have failed to appreciate the family practice that orders for costs are not made unless parties behaved unreasonably, and that could hardly be said of the father in this case. The whole of his order must be discharged.
13. The appeal should be allowed so that we can direct - and this can be made by consent - that in the interim the child shall live with his father. I emphasise - and to give the mother the consolation of the emphasis - that that is not to determine the outcome of the disputed residence application yet to be determined. It is a purely holding order and no more than that.
14. There should be staying contact to the mother which should be generous. If the parties cannot agree it we will rule upon it and give them a chance to put an agreed schedule before the court to incorporate the order that I would make. There is to be a CAFCAS report. There is no justification for ordering its expedition. It should be restored for directions, and arrangements must be made for this case to be heard. His Honour Deputy Judge Hamilton will, I hope, take no umbrage if I say in view of his having decided the case effectively in the father's favour, it would appear henceforth to the father that he did not get a fair hearing. So I think it far better that the matter be heard by a judge in the Stoke-on-Trent County Court who has a family ticket and who is not His Honour Deputy Judge Hamilton. The costs order is discharged with the other parts of the order of 8th November.
15. THE PRESIDENT: I agree with the judgment of my Lord. Consequently, the permission to appeal is granted. The appeal is allowed. We set aside the order of His Honour Judge Hamilton of 8th November 2001. There will be no order as to costs here or below save legal aid assessment. (Neither of you need it). We direct a report from a CAFCAS court reporter; restore for hearing the cross-residence applications after the report is available; to be heard by His Honour Judge Orrel, if possible, with an invitation to His Honour Judge Orrel to retain the case to himself if he is available. If he is not available, to be heard by another judge with a family ticket other than Judge Hamilton.
16. In the meantime the child is to continue to live with the father with generous contact to the mother, including staying contact. We hope the parties will be able to agree on an appropriate schedule for that staying contact. If not, we will have to look at it at the end of the day otherwise it will be slotted into this order.
17. Order: Application allowed. Appeal allowed. After discussion outside court counsel indicated that they had agreed periods of contact. A minute of order to be lodged with court