ON APPEAL FROM LEEDS COUNTY COURT
(MR RECORDER FAIRWOOD)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
|IN THE MATTER OF H (A Child)|
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Mr Matthew Rudd & Ms Elizabeth Coleman (instructed by Hartley & Worstenholme, Davies Gore Lomax) appeared on behalf of the Respondent.
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Lord Justice Thorpe:
"(i) Whether the correct standard and burden of proof were applied in making the findings that the mother was in breach of paragraph 1.1 of contact order of 13 May and paragraph 1.3 of the contact order of 29 July.
(ii) Whether the learned Recorder treated issues as going to the question of reasonable excuse which should have been treated as going to the question of breach."
"As Ward LJ observed in para  of his judgment in the case of Re B (A Child: Contact)  EWCA Civ 1968, 1 ALL ER 349, 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."
"'a residence order' means an order settling the arrangements to be made as to the person with whom a child is to live;
'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;
A residence order means an order settling the arrangements to be made as to the person with whom the child is to live. 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."
Lord Justice Tomlinson:
"I do urge the mother to consider very carefully where this is all going and where it might end up."
Order: Application allowed