England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COVENTRY COUNTY COURT
(Her Honour Judge Fisher)

		Royal Courts of Justice Strand London WC2 Thursday 20th December, 2001

1. LORD JUSTICE WARD: This is an application by Mr W for permission to appeal against the orders made by Her Honour Judge Fisher sitting in the Coventry County Court on Thursday 4th October 2001. She made then these orders:

"1. Pursuant to the consent order of 29th November 2000

a) The Father ... shall make the child ... available for contract for the Mother ... from 12noon on Tuesday 23rd October until 5pm on Sunday 28th October 2001.

b) The Father ... shall be responsible for delivering the child to the mother on 23rd October 2001 and shall be responsible for collecting the child at 5pm on Sunday 28th October 2001."

2. There is a penal notice attached to paragraph 1a and 1b above."

2. The order then went on to give directions that the penal notice would be reviewed on 21st November. The case would be listed again on that date for 2 hours with both parties to attend. It made arrangements for the service of the order and then provided that the father should pay the mother's costs, not only of 4th October, but also 18th September when costs had been reserved. He appeals against the imposition of the penal notice and the order for costs against him.
3. There is this history to the matter. The boy lived with his mother until there were difficulties he encountered with his stepfather, or the mother's partner, as a result of which he moved to live with the applicant, Mr W, in April 2000. That change has been accepted and, I assume, a residence order made in favour of the father. He tells me, and I have no reason to disbelieve him, that he has no objection to contact and as a result agreed to a contact order being made on 29th November 2000, by consent, in effect allowing mother to have contact one weekend a month and for periods during half-terms and school holidays.
4. MR W: My Lord, can I say something? I did say that she could have fortnightly contact. She demanded she have monthly contact.
5. LORD JUSTICE WARD: I will put that in.
6. That was the order made by consent. Indeed, as Mr W has interjected to remind me, he was quite willing to offer fortnightly contact, but the mother wanted it once the month and that was the consent order that was made. I emphasise that because it may give an indication of the fact that he genuinely is willing and anxious that the boy have a proper relationship with his mother.
7. The difficulty arises because he has moved to live in Folkestone in Kent, whereas she apparently still resides in the Midlands. The difficulties are of transport. He does not have much money, neither I suppose does she. He has put before the court evidence to suggest that both his motor car and that of his new wife have broken down and there are obvious transport difficulties. As far as I can tell those difficulties have not been resolved, even though the matter has been before the Coventry County Court on a number of occasions. It may be the reason why contact broke down when it did. Whatever the reason, it is high time that this be examined and sorted out. Why there is a need for a further directions appointment on 4th January I do not quite know. I would have thought that directions could be agreed without the waste of money, having the father go to Coventry for no more purpose than that.
8. Now to the grounds of appeal. The father objects to the penal notice, possibly in principle, which is a fair point given that he has not shown himself unwilling to allow contact, and that the difficulties have arisen over arranging the transfer of the boy or arranging a convenient meeting point. I would have thought once the difficulties are resolved there may be no need for a penal notice at all. However that is not the complaint that comes to the Court of Appeal. The complaint here is that the order as drawn is so vague as to be unenforceable by committal, and if it is unenforceable by committal the endorsement of the penal notice upon it is utterly pointless. I think there is considerable force in that argument. That the father is to make the child available for contact from 12 noon on a Tuesday till 5.00pm on a Sunday clarifies at least the times that contact is to take place. But to require that the father be responsible for delivering the child to the mother is vague, and so vague as to be unenforceable, because it does not tell him where he is to deliver the child to the mother. It might be assumed to be her home, but there has not always been certainty that she would be at home. So I can see that there might be some ground for attacking this particular order.
9. It would be a pointless appeal, principally because it is academic. He did deliver the child and that order has served its purpose. But for the future I would remind the Coventry County Court that if they are going to endorse a penal notice they need to be satisfied that it is necessary because there is a real risk that the court order will not be obeyed; and secondly, if they come to that decision, they need so to define the contact order that it is abundantly plain what has to be done to justify any application for contempt for committal for contempt. Because the matter is academic, I dismiss the application for permission to appeal.
10. As to costs, I confess to be disconcerted by that order. The father has clear financial difficulties. He did inform the court of them. He seems to have told the court that he had to be in the County Court in Ashford, but that matter was agreed late in the day and he did not have the time or money to get to Coventry. But costs are a matter for the court's discretion and, on balance, although I feel the court could have been more sympathetic to him, it is not a matter upon which this court is likely to interfere. So I would be creating more costs if I granted permission than I would by dismissing the application. The kind thing is to dismiss that application as well.
11. I will endeavour to get a copy of this judgment to the Coventry County Court, to be placed before the judge, if possible before the next directions appointment, with the hope that arrangements can be made for an effective determination of what is a real dispute as to collection and return of the boy. The court needs to examine which party has to bear the whole burden or whether they should share the burden of collection and return. It is a simple dispute. It is time it was resolved as cheaply as possible.
12. The principle and give and take of give and take is not a bad one to apply in family matters. One wonders whether the court would be as sympathetic to a father seeking contact as it may be to a mother seeking contact if the burden of carriage were the other way round. But that may be a wholly unfair, inappropriate remark. Nonetheless, I hope the judge will bear it in mind, whether it is politically correct or politically incorrect.
13. The applications are dismissed.
ORDER: Applications for permission to appeal and a stay of execution dismissed. (Order not part of approved judgment) ____________________