A (Children), Re

A court should not interfere with a trial judge’s discretionary extension of child contact where the judge has managed the case, assessed the evidence and balanced the need for progress against abduction and welfare risks. A penal notice may be set aside where it was imposed prematurely because the issue was not effectively argued and the other party was led to expect that it would be dismissed. The issue may be reconsidered if later intransigence appears. An interim stay of extended staying contact may remain where intervening events have caused loss of momentum and a fuller review is required.

The parents’ disputes in the Barnet County Court concerned contact with their two young children, safeguards against abduction and related procedural matters. On 8 October 2001 Judge Latham extended contact to include monthly staying contact, imposed a penal notice against the mother and maintained restraints concerning the father’s Egyptian passport.

The mother appealed against the penal notice and the extension of contact. The father sought permission to challenge passport restraints, the refusal of separate representation for the children and an earlier order. Further applications concerning transfer and recusal became otiose after protective orders were made by the President of the Family Division. The central issues were whether the penal notice and contact extension should stand, and whether staying contact should remain suspended pending review.

Lord Justice Thorpe gave the principal reasons. Lord Justice Tuckey and Sir Anthony Evans agreed.

1. Permission applications. All five applications for permission to appeal were dismissed. The father’s challenges to passport restraints and refusal of separate representation concerned matters within the trial judges’ discretion. Separate representation in private-law disputes was also subject to stringent restrictions under the relevant Practice Direction, and this case fell well outside the applicable definitions. The mother’s applications concerning transfer and recusal had become otiose following the President’s subsequent orders.
2. Penal notice. The mother’s appeal was allowed and the penal notice was set aside. Although Judge Latham had found that the mother had obstructed contact and that there was a present risk of non-compliance, the conclusion was procedurally flawed. The application had not been effectively pursued at the hearing, and counsel’s statements had reasonably led the mother to assume that it would be dismissed. In the wider context, including the mother’s generally compliant history and the circumstances of the breach, the imposition was premature. The President could reconsider a penal notice if later intransigence emerged. The court noted the authorities relied on by counsel, In Re N (Access: Penal Notice) [1992] 1 FLR 134 and Re F (Contact: enforcement: representation of child) [1998] 1 FLR 691.
3. Extension of contact. The appeal against the extension of contact was dismissed. Judge Latham had managed the case throughout and was best placed to balance the need for progress against the risks of abduction and their effect on the mother and children. The welfare officer supported progression, and the abduction risk did not justify treating that assessment as incapable of reliance. Interference would have been unprincipled.
4. Interim stay and order. Because the stay had interrupted contact and caused loss of momentum, a fuller examination was required before staying contact resumed. The staying-contact provision therefore remained stayed pending prompt review by the President. There was no order for costs, save for assessment of the mother’s publicly funded costs.

1. Court of Appeal (Civil Division) [2002] EWCA Civ 245: dismissed all five applications for permission to appeal; allowed the mother’s appeal against the penal notice; dismissed the appeal against the extension of contact, while continuing the stay of staying contact.
2. Barnet County Court: Judge Latham made the principal contact, penal-notice and passport orders on 8 October 2001. Judge Laurie had made an earlier order on 17 August 2001.