ON APPEAL FROM CHELMSFORD COUNTY COURT
(HIS HONOUR JUDGE NEWTON)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MCFARLANE
IN THE MATTER OF K (A CHILD)
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Miss A Ratcliffe (instructed by Milner Elledge) appeared on behalf of the Respondent Child through her Guardian.
The Respondent Mother did not attend and was not represented.
Crown Copyright ©
Mr Justice McFarlane:
"2. Direct contact as per paragraph 1(b) shall commence on the 25th July 2011 for a period of three weeks up to and including the 14th August 2011. The contact will take place at [address given]...
3. For this period of contact the Father shall vacate the said property and the Mother shall contribute the sum of £50.00 per week towards the cost of alternative accommodation."
"The learned judge erred in failing to take into account the fact that the appellant's partner and their one and a half year old son lived with him and were due back to the UK shortly after the hearing but had in fact returned on 28th June 2011."
The mother raised the question of the partner and the son, the father says in answer that the boy went back to Bulgaria. The judge then takes up the matter at line 20.
"The judge: I am aware of that; I was going to ask, thank you for reminding me about that. I know that your partner has moved back to Bulgaria.
Father: Yes Your Honour.
Judge: And when did that occur?
Father: It was about six months ago Your Honour. Judge: And you haven't seen [B] since?
Father: No, we've just get letters and phone calls whenever --
Judge: And what are you proposing to do about that?
Father: What am I proposing to do? Well we -- she is going to be getting an internet connection and we are going to be via the internet.
Judge: So the internet will be useful both for you and for [A] actually?
Father: Yes, we will be using the internet maybe for another --
Judge: Right. And do you have any plans to actually see [B]?
Father: No Your Honour because of the finances."
" A section 8 order may—
(a)contain directions about how it is to be carried into effect;
(b)impose conditions which must be complied with by any person—
[ and then there is a list of persons of whom the father is clearly one ]
(c)be made to have effect for a specified period, or contain provisions which are to have effect for a specified period;
(d)make such incidental, supplemental or consequential provision as the court thinks fit.
"That section provides that a contact order may contain conditions about how it is to be carried into effect by a parent. No limitation is imposed on the court's wide discretionary power. I would not wish to be thought to be doubting any word of that judgment with reference to its particular facts [and that is a reference to an earlier decision Re O  2 FLR 124]. If and insofar as Swinton Thomas LJ [who was the judge in that case] is suggesting there is an unfettered discretion under Section 11.7 to make an order the effect of which is to interfere with the clear right of occupation of one party, then that runs counter to the whole development of the law which I have recited and with respect cannot be right. Section 11.7 in my judgment is ancillary to the making of a Section 8 order, it is governed by the provisions for making of a Section 8 order and does not allow the importation by this back door of the matters laid down in the Matrimonial Homes Act or proper adjustment of rights of occupation "
"It is frankly beyond question that she needs to go to Bulgaria and the sooner she does the better for her. At the present time I do not think that that can be engineered quite yet."
However, he goes on obviously to make the order for October as being the one that is justified in the circumstances.
"The guardian in her report made clear that A at the moment is steadfastly opposed to going to Bulgaria at least on her own. She would be prepared to go with a trusted adult but only under certain circumstances and I do not think that at the moment the time is quite right "
Lord Justice Ward:
Order: Appeal allowed in part.