England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROYDON COUNTY COURT
(His Honour Judge Ellis)

		Royal Courts of Justice Strand London WC2
		Thursday, 29th March 2001

1. LADY JUSTICE HALE: This is an application for permission to appeal against an order made by His Honour Judge Ellis in the Croydon County Court on 25th January 2001. The order concerned a boy, M, who was born on 20th October 1988. He is the son of married parents who were judicially separated in 1999 but are still living under the same roof. This means that they have equal parental responsibility for M. Each is equally entitled to make decisions about his care, about his day-to-day needs and about his upbringing. They also have living in the same household their older son, J, who is 17 and not therefore the subject of any court orders.
2. The father has experienced considerable difficulty in maintaining and developing his relationship with M. M is obviously aware of the very difficult situation between his parents and he is very loyal to his mother. The father wishes to be able to spend some time on his own with M and to enjoy a normal father/son relationship with him. He therefore took the very unusual step last year of applying for a contact order in relation to a child with whom he was living under the same roof.
3. His Honour Judge Ellis, on 16th June 2000, made such a contact order. This provided that:

"In addition to day-to-day contact within the home, the father shall have the following specific periods of contact with [M] when he may take [M] out from home:

i)Every other Saturday from 12.30pm until 9pm, commencing 1 July 2000.

ii)The last complete weekend in each month from 4.30pm Friday until 6pm on Sunday, save during school holidays when it will be until 8pm on Sunday, commencing Friday 23 June 2000.

iii)A period of up to 2 weeks during each school summer holiday when the father may take [M] away on holiday providing he gives the mother not less than 3 weeks notice in writing of the details of the proposed holiday including dates and destination.

iv)Such further or other periods as may be agreed between the parties."

4. There was also at that time a dispute about which secondary school M should attend, which was resolved in favour of the convenient school which the mother wanted him to attend rather than the somewhat less convenient, but not inconvenient, school which, in the father's view, had a better academic and disciplinary reputation. But there has not been an appeal against that part of the order; nor was there an appeal against any other part of the order of 16th June 2000.
5. However, it appears that that order has never been operated in the way that the learned judge anticipated. The father has apparently experienced considerable difficulty in having that one weekend a month away with his son. He also experienced some difficulties over the summer holiday, which culminated in his taking all four of the family away to Portugal instead of having that time with M.
6. He made an ex parte application with a view to enforcing the order back in July of last year. That came before His Honour Judge Coningsby QC, who made a very precise order in relation to the immediate weekend contact and also allowed him to apply for a penal notice to be attached over the telephone should things not work out as intended. But, of course, the problem is that that is now water under the bridge: that related to that weekend.
7. But the father then made an application for a penal notice to be attached to the June 2000 order. He also wished to be reassured that M would no longer sleep in the same bedroom as his mother. He also wanted it clear that M would have his own passport, so that he could in future, should he so wish, take his son abroad on holiday.
8. This matter took an inordinate length of time to come before the court. It eventually came before His Honour Judge Ellis on 25th January 2001. His Honour Judge Ellis dismissed the application for a penal notice to be attached to the contact order. He did so on the following ground:

"There is a real practical difficulty with that application. A court cannot attach a penal notice to a contact order unless the order is in mandatory form. [M] is a boy of 12. He has his own activities that he is interested in. He plays a role in his local church, which is on the evidence important to him. There are frequently church activities at the weekend and it is impossible in my judgment to devise an order which would be in [M]'s best interest which compels the mother to make [M] available for contact with his father."

9. That seems to me to mean one of two things: either the judge was wrong to make the original contact order because he has admitted that it cannot work in M's interests; or it was an order which the judge felt he could not effectively enforce because it was not in mandatory terms. If it is the second of those things, the easiest thing for the judge to do would have been to amend the order of 16th June and put it into mandatory terms. Furthermore, although we all know that imposing sanctions for failure to comply with a contact order must be a last resort and usually makes matters worse rather than better, nevertheless, if the court is going to make a contact order in these unusual circumstances, the very least it can do is to make it absolutely plain to the person who has to make the child available and permit the child to have that contact that that is what is expected of them. It is not appropriate for the court, having made an order, simply to put up its hands in horror and say that it is not going to do anything more about it.
10. There is also the fact that the judge, having made such a limited order back in June 2000, further limited it with a view to ensuring that M continued his weekends with his father exactly as if they were not weekends special to his father, because he required the father to ensure that M attended Mass and, if necessary, returned home in time for him to attend the six o'clock Mass at his church; and there was basically nothing effective done about the problem of M continuing to share his mother's bedroom.
11. I am conscious that I have heard only one side of this story. I am conscious that it is an extremely difficult situation. The court has, of course, to put M's interests before those of either his father or his mother. The father assures me that, although he recognises that this application may exacerbate matters between the parties and will have financial implications, nevertheless he wishes to pursue his application; and, for the reasons that I have given, it seems to me that it is not wholly without foundation. I therefore propose to adjourn it for a hearing on notice to the other side, with the appeal to follow if permission is granted.
12. I will direct that a transcript of this judgment be prepared and a copy served on each of the parties.
Order: application adjourned to a hearing on notice to the other side, with appeal to follow if permission is granted; copy transcript of this judgment to be served on each of the parties; reporting identification restrictions to apply. (Order does not form part of approved Judgment)