Y (a Child), Re

In construing a child-contact order, a specific provision governing a particular holiday period prevails over a general provision governing weekly contact where the two appear inconsistent. An order expressed to vary and substitute previous orders should not be read as discharging unrelated orders, such as parental responsibility, unless that is clearly intended. Where contact arrangements are ambiguous and likely to generate further disputes, the court may adjourn a permission application and encourage mediation so that the parties can agree an intelligible working arrangement. In children’s proceedings, no order as to costs remains the usual approach.

The father applied for permission to appeal from a Luton County Court order of 19 November 2001 regulating contact with his six-year-old son. He challenged the wording of the order, the arrangements for Christmas, birthdays, school holidays and contact after school, and the alleged failure to hear his evidence, apply the welfare checklist and consider shared residence. He also challenged the costs order. The central issues were whether the order had displaced earlier orders concerning parental responsibility and the child’s name, how its apparently conflicting contact provisions should be construed, and whether the permission application should proceed immediately or be adjourned for mediation.

Disposition. Lord Justice Ward adjourned the permission application. The father was permitted to restore the matter on notice to the mother if mediation failed. If the parties reached an agreed order, the appeal could be dismissed by consent. Permission to appeal against the costs order was refused.

1. Construction of the order. The preamble stating that the order was in variation of and substitution for all previous orders did not remove unrelated orders. It did not deprive the father of parental responsibility or alter the order concerning the child’s name.
2. Specific and general provisions. The specific provision governing contact during the final week of the Christmas holiday prevailed over the general provision that weekly contact was to run from 10.00 am on Saturday to 10.00 am the following Saturday. The order therefore appeared to provide for the Christmas contact period to end at 6.00 pm on the day before the new school term.
3. Contact arrangements. The order created an apparent conflict between the father’s extended Christmas contact and the separate two-hour birthday contact provision. It was silent on half-term holidays and contained arrangements which might operate impractically where the father collected the child from school. These matters created serious prospects of future disagreement.
4. Welfare and shared residence. The judge had sufficiently addressed the child’s needs, the promotion of his relationship with his father, and the need for stability and structure. An out-of-date welfare officer’s report required no criticism. Shared residence was inappropriate, but generous, consistent contact was appropriate and, together with parental responsibility, gave the father an effective place in the child’s life.
5. Mediation and costs. Given the parents’ continuing dispute and the need for a workable future framework, mediation was the preferable immediate course. In children’s matters, no order for costs was usual; recovery from the legally aided mother or by a wasted-costs order appeared too remote to justify permission to appeal.

1. Court of Appeal (Civil Division). On 20 February 2002, the court considered the father’s application for permission to appeal and adjourned the matter for mediation, with liberty to restore it on notice if conciliation failed: [2002] EWCA Civ 377.
2. Luton County Court. On 19 November 2001, His Honour Judge Farnworth made an order regulating contact, expressed to be in variation of and substitution for previous orders.