T (A Child), Re

When a child is habitually resident in Scotland, future disputes about contact should ordinarily be determined by the Scottish court with practical jurisdiction over the child. An English court should not make unrealistic contact orders for a young child living in Scotland and relatives living in southern England. Before transferring the remaining contact dispute, the court should settle outstanding issues of residence and parental responsibility where they can properly be resolved on the material before it. A parent without an order regulating the child’s residence may relocate within the United Kingdom with the child without a full application for permission to remove the child from the jurisdiction. The appeal was therefore allowed only to add an order granting the father parental responsibility.

The proceedings concerned arrangements for J, the child of separated parents, including contact with his father and paternal grandmother. The Chichester County Court ordered supervised contact for the grandmother and adjourned the father’s applications for contact and parental responsibility.

The mother subsequently applied to vary or terminate direct contact and for a residence order. She then moved with J to Scotland. On paper, the county court granted her a residence order but failed to determine the outstanding application for parental responsibility, while directing that future issues be pursued in Scotland. The father and grandmother challenged that omission. The central issue before the Court of Appeal was whether permission to appeal should be granted and, if so, what limited amendment should be made before the contact dispute passed to the Scottish courts.

1. Disposition. The Court of Appeal granted permission to appeal and an extension of time. The appeal was allowed only to amend the order made on 12 December 2000, dated 13 December, by adding paragraph 3 granting the father parental responsibility for J.
2. Relocation within the United Kingdom. Thorpe LJ held that, when the mother moved within the United Kingdom, there was no order regulating J’s residence and no order conferring parental responsibility on the father. As a matter of law, she was entitled to make the move without a full application for permission to remove the child from the jurisdiction. The lower court’s earlier correspondence reflected a legal misapprehension. Its later assumption that the mother already had the benefit of a residence order was also erroneous. The reference to section 27 of the Family Law Act 1986 did not alter the position.
3. Residence and parental responsibility. The outstanding parental-responsibility application should have been dealt with before the remaining contact dispute was transferred. The mother had always been J’s primary carer, there was no reason to refuse her residence order, and the father’s application was not one that could usefully be resisted on the applicable principles. The omission was therefore corrected by the Court of Appeal itself.
4. Contact and jurisdiction. Thorpe LJ and the President agreed that future contact applications should be heard in Scotland, where J was habitually resident. It was not realistic for an English court to make effective contact orders concerning a child living in Scotland and a father and grandmother living in southern England, particularly given the practical scarcity of resources. The relevant English papers, including the welfare report, were to be supplied to the Scottish court.
5. Ancillary directions. The mother’s private Scottish address was to remain confidential unless disclosure was authorised by the county court. The judgments were to be provided at public expense. There was no order for costs, save for detailed assessment.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1067, permission to appeal and an extension of time were granted. The appeal was allowed only to add an order granting the father parental responsibility. Future contact issues were directed to be heard in Scotland.
• Chichester County Court: Judge Barratt QC ordered supervised contact and adjourned the father’s applications for contact and parental responsibility. On 12 December 2000, with the order dated 13 December, he granted the mother a residence order but did not determine the father’s parental-responsibility application.