A (Children), Re

A court should not approve a consent order concerning child contact if its terms may be incomplete, vague or unworkable. An agreement leaving essential arrangements to future agreement may be unenforceable, particularly where further applications are barred unless there is a substantial change of circumstances. Where the merits were not adjudicated because the order was agreed, an appeal on the merits is unlikely to succeed unless approval of the agreement was erroneous or there was a serious procedural irregularity.

Mr A sought permission to appeal against a consent order made by His Honour Judge Durman in the Birmingham County Court on 30 January 2002. The order regulated contact with his four children and restricted further applications concerning residence or contact until January 2006 unless there was a substantial change of circumstances.

The Court of Appeal identified possible defects in the order. It appeared not to specify the weekend contact arrangements for 2004 and 2005, and it removed an earlier provision for further reasonable contact by agreement. The central issues were whether the agreement was complete, enforceable and capable of practical operation, and whether the court had properly approved it.

1. Disposition. The application was adjourned and ordered to be relisted on notice to all parties, with the appeal to follow if permission was granted. The matter was to be listed before two Lords Justices, one of whom could be a High Court judge.
2. Workability of consent orders. A consent order regulating child contact may be vulnerable to being set aside if the agreement is incomplete, too vague to enforce, or otherwise unworkable. An agreement leaving essential future arrangements to agreement may not be binding or suitable for approval.
3. Need for practical scrutiny. The order removed an earlier provision allowing further reasonable contact by agreement, while restricting applications unless there was a substantial change of circumstances. That combination might leave no workable mechanism for resolving disagreement. The order also specified weekend arrangements for 2002 and 2003 without identifying how they were to operate in 2004 and 2005.
4. Merits and welfare. The judgment recorded Mr A’s argument, referring to Livesey v Jenkins [1984] AC 424, that the judge had to make an independent judgment because the children’s welfare was paramount. That issue was left undecided. The judge’s provisional view was that, since the merits had not been adjudicated, an appeal on the merits could succeed only if approval of the agreement was wrong or there had been a serious procedural irregularity.

• Court of Appeal (Civil Division): The application concerned the consent order made by the Birmingham County Court on 30 January 2002. The Court of Appeal adjourned the application and directed that it be relisted on notice to all parties, with the appeal to follow if permission was granted.