R (A Child), Re

In child-contact proceedings, an appellate court should be slow to interfere with an urgent discretionary order made by a trial judge who knows the case and must act on limited material. This applies particularly where the order reflects contact arrangements already recorded in an undertaking and a parent seeks a late change without adequate supporting evidence.

Costs orders are unusual in children cases and generally require unreasonable litigation. Costs nevertheless remain within the trial judge’s discretion, and appellate intervention is not justified merely because fuller reasons might have been preferable.

The father appealed against orders made by His Honour Judge Hutton in the Gloucester County Court concerning contact with his daughter and payment of the mother’s costs.

The mother had been permitted to remove the child permanently to Canada and had undertaken to provide contact, including two consecutive weeks of summer contact followed by a further week. The father later sought three consecutive weeks in August. The judge ordered contact in accordance with the mother’s proposed dates and ordered the father to pay her costs.

The appeal concerned whether the arrangements for summer contact and the costs order should be disturbed.

Disposition

The Court of Appeal, in a unanimous judgment of Wall J and Thorpe LJ, dismissed the appeal in its entirety. The father was ordered to pay the costs of the appeal.

1. Contact. The trial judge was required to make a prompt decision concerning imminent contact. He knew the case, had the earlier proceedings in mind, and was faced with inadequate material for changing the arrangements recorded in the mother’s undertaking. The father’s request for three consecutive weeks in August was made at a relatively late stage and sought to alter the previously agreed structure. The judge’s decision was therefore one with which the appellate court could not and should not interfere.
2. Costs. Costs orders are unusual in child cases, and unreasonable litigation is ordinarily required before such an order is made. Costs nevertheless remain a matter for the trial judge’s discretion. The mother had advanced a proposal before the hearing which the judge accepted, while the father sought to change the arrangements. The order was within the judge’s broad discretion. Thorpe LJ had greater misgivings because the absence of a transcript left the reasoning uncertain, but considered that any doubt should be resolved in favour of upholding the discretionary decision.
3. Future arrangements. The parties were urged to negotiate future contact well in advance and in clear terms. If agreement on three consecutive weeks could not be reached, any renewed application should be supported by cogent arguments. The child should be kept apart from the parents’ dispute.

• Court of Appeal (Civil Division): Appeal from the Gloucester County Court dismissed in its entirety; the costs order was upheld. [2002] EWCA Civ 1046.
• Gloucester County Court: His Honour Judge Hutton ordered specified Easter and summer contact and ordered the father to pay the mother’s costs on 21 March 2002.