D (A Child)

In family proceedings, a directions hearing is ordinarily for case management rather than final welfare decisions. A definitive order may be made only where the evidence is clear and one-sided, or in other unusual circumstances. Extending established visiting contact to overnight staying contact for a very young child, over a parent's objection, requires a proper opportunity to present evidence and concerns. The court must not pre-judge the substantive hearing or use the child as an evidential experiment. Existing contact may, however, be reinstated promptly where a parent has unilaterally stopped it and there is no evidence that continuation would be inappropriate. Costs orders against parents in children cases are exceptional.

The parents of a young child had separated and agreed arrangements for contact with the father. After the mother suspended contact, a county court directions hearing considered the father's application. Despite a substantive hearing about overnight contact being listed for January 2002, the recorder ordered that contact should include overnight stays and ordered the mother to pay costs.

The mother appealed. The Court of Appeal considered whether the recorder had been entitled to extend visiting contact to staying contact at a short directions hearing, and whether the costs order had been made in accordance with the approach applicable in children proceedings.

Appeal allowed. Dame Elizabeth Butler-Sloss P delivered the judgment, and Keene LJ agreed.

1. Directions hearings. The ordinary function of a directions hearing in family proceedings is to give directions. A definitive order may be made where the evidence is all one way and absolutely clear, but that is appropriate only in unusual circumstances.
2. Existing contact. Where a parent has unilaterally stopped established contact and there is no evidence that it should not continue, the court may use a short hearing to reinstate the existing arrangements. It need not require the parties to give evidence unless there is a real concern about continuation.
3. Overnight contact. Moving a three-year-old child from visiting contact to overnight staying contact was a considerable step. The mother objected and was entitled to place her concerns before the court, so that the judge could consider evidence from both parties and the child's welfare at a substantive hearing. The recorder had therefore pre-judged the January hearing. The proposed overnight stays could not properly be used to test the child as a guinea-pig.
4. Costs. The court was reminded that rule 44.3(3) of the Civil Procedure Rules 1998 disapplied the general costs rule in the stated family appeals. There was also a clear practice that costs orders were rare in children cases, particularly against a legally aided parent. The recorder had approached costs in error. The Court of Appeal set aside that order and made no order as to costs below or in the appeal.

The staying-contact order and the costs order were set aside. The existing visiting-contact order of 3 August 2001 was to continue until the January hearing. The appellant's costs were subject to public funding assessment.

1. Court of Appeal (Civil Division) — Allowed the appeal, set aside the orders for staying contact and costs, continued the existing visiting-contact order, and made no order as to costs.
2. Birmingham County Court — On 11 October 2001, Mr Recorder Parry ordered staying contact and ordered the mother to pay costs.