A (Child), Re

In child-arrangements proceedings, the court must give priority to the child’s welfare and to a healthy relationship with each parent, while recognising the child’s need for independence and personal space. A contact order should be sufficiently clear to operate effectively and may, where appropriate, be framed in mandatory terms. It may permit contact outside the home or jurisdiction, subject to safeguards such as notice and an undertaking to return the child. A penal notice is a last resort, but may later be attached to a mandatory order if circumstances justify it. A school decision will not ordinarily be reopened after delay and commencement, although future reconsideration may be possible if the child’s welfare or attendance materially worsens.

The father sought permission to appeal against orders of His Honour Judge Ellis in the Croydon County Court. The order of 16 June 2000 regulated contact with his 12-year-old son and selected St Mary’s school rather than the school preferred by the father. The order of 25 January 2001 refused a penal notice on the contact order, made no order requiring the child to sleep separately from his mother, and amended the contact arrangements to include attendance at Mass.

The father also sought an extension of time and permission to adduce further evidence, including school information. The central issues were whether the contact arrangements should be replaced by a more effective and enforceable order, whether separate sleeping arrangements should be required, and whether permission should be granted to reopen the school decision.

Hale LJ gave the substantive judgment, with the President agreeing.

1. Contact and welfare. The court identified three connected welfare concerns: the child’s excessive dependence on his mother and lack of personal space, his poor school attendance, and the need for a proper and healthy relationship with his father. Children are people, not possessions. Their welfare requires attention to their need to develop independence and to maintain appropriate relationships with both parents.
2. Substituted contact order. Permission to appeal against the contact-related orders was granted. The existing order was replaced by a new order preserving substantially the same periods of contact but expressly allowing contact within the home, outside the home, or outside the country. For contact outside the jurisdiction, the father was required to give one week’s written notice and undertake to return the child. The father was also permitted to collect and return the child’s passport. Contact on the relevant Saturday morning was not to be displaced by church or church-related activities.
3. Penal notice. No penal notice was imposed at that stage because such a sanction is a last resort. The substituted order was nevertheless mandatory and therefore capable of having a penal notice attached if circumstances later deteriorated sufficiently.
4. Sleeping arrangements. The mother was ordered, from the beginning of June, not to permit the child to share her bedroom except in an emergency. The court considered that continued sharing undermined the child’s ability to develop independence and might contribute to his poor school attendance.
5. School. Permission to appeal the school decision, and the extension of time, were refused. The child had already begun at St Mary’s and it was to be given a fair chance. The parents could agree a change, and the court might reconsider the issue in future if attendance did not markedly improve. There was no order on the application to adduce additional evidence. There was no order as to costs, save legal aid assessment.

1. Court of Appeal (Civil Division): permission to appeal concerning contact was granted and the appeal was allowed to the extent of substituting a new contact order. Permission to appeal and an extension of time concerning the school decision were refused. [2001] EWCA Civ 864
2. Croydon County Court: His Honour Judge Ellis made orders on 16 June 2000 and 25 January 2001 concerning contact, schooling, enforcement, and sleeping arrangements.