W (A Child)

In child contact proceedings, a parent’s material concealment of a change of home and school may justify setting aside a contact order where the trial judge might have reached a different decision. A court’s broad discretion does not justify an arrangement that gives one parent effective control over holiday contact, particularly where cooperation between the parents is poor. If the appellate court lacks sufficient material to determine suitable contact safely, it should order an expedited re-trial rather than substitute its own arrangement.

The father appealed against a Leicester County Court order made on 27 September 2001 regulating contact with his nine-and-a-half-year-old son. The order provided for monthly overnight contact, two hours on Christmas Day, and no additional holiday staying contact unless agreed by both parents.

The father alleged that the mother had failed to disclose that she had moved with the child from Leicester to Tipton and that the child’s school had consequently changed. He also challenged the holiday-contact provision, given the parties’ animosity. The central issues were whether the non-disclosure was material to the order and whether the holiday provision fell within the judge’s discretion.

1. The appeal was allowed. The order of 27 September 2001 was set aside and a re-trial was ordered.
2. The mother’s concealment of her change of home, the child’s school and related circumstances was a serious breach of her obligations to the court and to the father. It was manifestly more than possible that the trial judge might have made a different contact order had he known the true facts. The non-disclosure therefore justified setting aside the order.
3. Separately, the provision governing additional holiday contact was unsatisfactory. In circumstances of considerable animosity, it effectively gave the mother power over whether regular contact could be extended into the school holidays. That arrangement was not sensible and was not covered by the width of the judge’s discretion.
4. The Court of Appeal declined to determine a replacement contact regime because it lacked sufficient material to do so safely. The matter was remitted for an expedited re-trial in the County Court on or before 15 March 2002.
5. The mother was directed to file within 14 days a full statement addressing the circumstances of the non-disclosure, the general location and nature of the new home, the child’s school and adjustment, and her ordinary weekend routine. The father could file a further statement within the following seven days if advised. The February contact weekend was to proceed in the interim. Public funding certificates were noted for both parties.

1. Court of Appeal (Civil Division): set aside the Leicester County Court order of 27 September 2001 and ordered an expedited re-trial.
2. Leicester County Court: HHJ Mayer QC ordered monthly overnight contact, limited Christmas Day contact, and no additional holiday staying contact without parental agreement.