C (Children)

In an appeal against a discretionary child-contact order, the question is not whether the appellate judge would have selected the same timetable. It is whether the order was one that a judge could validly make within the generous discretionary ambit. Family judges have a quasi-inquisitorial role and may raise issues not advanced by the parties. Appellate intervention is unwarranted where relevant welfare risks were considered, even if another judge might have balanced them differently.

The mother sought permission to appeal and a stay of a Barnet County Court order granting the father seven days and six nights of staying contact with their nearly three-and-a-half-year-old child during August 2001. She argued that the child was too young, that the proposal had been judge-driven, that preparation time was inadequate, and that her depressive history created a risk of consequential harm to the child.

The county court judge had considered the history, evidence, welfare checklist and relevant risks, and concluded that modest staying contact was appropriate. The central issue before the Court of Appeal was whether a judge could validly regard the proposed August contact as appropriate.

1. Disposition. Lord Justice Thorpe refused the applications for permission to appeal and for a stay. The county court order therefore remained operative.
2. Appellate approach. The decision concerned the exercise of a broad judicial discretion in child-contact proceedings. The appellate question was whether August 2001 contact fell within the generous discretionary ambit, not whether the appellate judge would have reached the same conclusion or whether many judges might have preferred a later date.
3. Judge-driven decision. Family judges have a quasi-inquisitorial role and are not confined to issues or proposals raised by the parties. The fact that the suggestion of staying contact during the summer had originated with the judge did not itself invalidate the order.
4. Welfare considerations. The mother’s depressive history and the risk that her inability to cope with the order might affect the child were relevant matters. They had been weighed by the county court judge, so the decision could not be challenged on the basis that a relevant factor had been ignored.
5. Practical safeguards. Although the court could not impose additional terms while refusing permission and a stay, Thorpe LJ expected the father to act sensitively. He should facilitate telephone contact between the child and mother, allow the mother reasonable reassurance about the child’s welfare, and curtail the visit if the child became patently distressed.

• Court of Appeal (Civil Division) — On 3 August 2001, Lord Justice Thorpe refused permission to appeal and refused a stay in [2001] EWCA Civ 1339.
• Barnet County Court — His Honour Judge Latham ordered seven days and six nights of staying contact between the father and child during August 2001.