B (A Child), Re

A contact order presupposes identification of the person with whom the child lives. It cannot lawfully be used to create an alternating arrangement under which the child lives successively with each parent.

Where equal or alternating care is contemplated, the court must address whether a shared residence order is appropriate under the statutory scheme. On an interim application for contact, the court should not effectively determine a disputed residence issue without the necessary welfare inquiry. In a contested case, a CAFCAS report may be required before the residence issue is resolved.

Costs orders in family proceedings are exceptional and require unreasonable conduct.

The parents of a two-and-a-half-year-old boy had separated. Earlier interim arrangements recorded that the child would live with his father, while the mother had contact.

On the mother’s application for extended interim contact, a county court judge ordered a weekly alternation: seven days with the father followed by seven days with the mother. He adjourned the residence dispute without directing a CAFCAS report and ordered the father to pay the mother’s costs.

The father sought permission to appeal. The central issue was whether the interim contact order could lawfully and properly create equal alternating care before determination of the disputed cross-applications for residence.

1. Permission to appeal was granted and the appeal allowed. Lord Justice Ward, with whom the President agreed, set aside the whole order of 8 November 2001.

2. A contact order under Section 8 requires the person with whom the child lives, or is to live, to permit contact. The court must therefore determine that person before making a contact order. The weekly alternation was not a contact order at all in substance. A shared contact order was unknown to the law.

3. The statutory power in Section 11(4) concerned a shared residence order in favour of two or more people who did not live together. The county court judge had confused residence and contact. His order could not be upheld by treating it as a shared residence order.

4. The application concerned an extension of the mother’s interim contact, but the order effectively pre-determined the disputed question of residence. That was impermissible on the material before the judge. Because there were disputes to be tried, he should have directed a CAFCAS report before the residence applications were determined.

5. The costs order was also erroneous. Family practice did not permit an order for costs unless a party had behaved unreasonably, and the father had not done so.

6. Pending the welfare inquiry and hearing of the cross-residence applications, the child was to continue to live with the father and have generous, including staying, contact with the mother. The case was to be restored after a CAFCAS report before a family judge other than Judge Hamilton, preferably Judge Orrel. There was no order for costs above or below, save legal aid assessment.

• Court of Appeal (Civil Division): Permission to appeal was granted and the father’s appeal allowed. The court set aside the Stoke-on-Trent County Court order of 8 November 2001.
• Stoke-on-Trent County Court: Judge Hamilton had ordered weekly alternating periods with each parent as contact, adjourned for directions without a CAFCAS report, and ordered the father to pay costs.