S (A Child), Re

Permission to appeal in child-contact proceedings should ordinarily be refused where the order is limited, cautious and subject to an early review. The trial judge retains discretion to increase or reduce contact in light of developments and the child’s welfare. Management of that process is ordinarily for the trial court, rather than the Court of Appeal. A claimed departure from a court welfare officer’s recommendation must be assessed against the report as a whole. A more cautious order may remain consistent with a recommendation contemplating later staying contact. Parents should also give active consideration to local mediation where continuing litigation is distressing the child.

The applicant sought permission to appeal from an order made by Mr Recorder Axtell in Southampton County Court concerning contact between the father and child R. The order provided weekday contact and monthly overnight contact from Saturday to Sunday, with a further hearing fixed for an early review. The recorder had concerns about allegations of cocaine use and the reliability of a hair-analysis certificate, and arranged further testing.

The applicant argued that the recorder had departed from the court welfare officer’s recommendation. The central issue was whether the cautious, reviewable contact order raised an arguable matter suitable for consideration by the Court of Appeal.

Application refused. The renewed application for permission to appeal was dismissed.

1. The order was limited in scope and cautiously framed. It included an early review, enabling the recorder to assess developments since the original order and the effect of contact on the child.
2. Management of the arrangements remained for the trial court. The recorder retained a complete discretion either to progress towards normal staying contact or, in the child’s welfare, to reduce contact. The case was therefore not an appropriate matter for the Court of Appeal.
3. The recorder had not departed from the court welfare officer’s recommendation. The report recommended a monthly Sunday day visit but also contemplated a summer holiday stay of up to one week. The recorder extended the monthly contact to an overnight stay, while declining at that stage to order a week’s summer contact. The order was consequently more cautious than the recommendation in one respect and more favourable in another.
4. The child’s distress caused by the parents’ disputes was regrettable. Lord Justice Thorpe strongly encouraged the parents to consider mediation through a local service and to be ready to explain their position on mediation when the matter returned to the trial court. That guidance was ancillary to the refusal of permission.

• Court of Appeal (Civil Division) — Lord Justice Thorpe refused the renewed oral application for permission to appeal and ordered: application refused.
• Southampton County Court — Mr Recorder Axtell made the contact order under challenge, providing weekday contact, monthly overnight contact and an early review.