J (Children), Re

An appellate court should grant permission to appeal against a family judge’s discretionary welfare decision only where there is a proper basis for intervention, such as a manifest error or a decision outside the permissible ambit of discretion. A contact order is not immutable. It may be varied as a child’s needs and circumstances change, particularly where increased contact serves the child’s welfare. Persistent parental hostility and conflict at handovers may properly influence the structure of contact arrangements.

The father applied for permission to appeal against orders made by Johnson J in Norwich County Court concerning his young son and the mother’s older child. The judge refused a residence order, made a four-weekly contact arrangement involving overnight contact, and made ancillary disclosure and injunction orders. The father challenged the residence and contact decisions, the absence of contact with the older child, and the attachment of a penal notice to the injunctions. The central issue was whether any of those decisions disclosed a proper basis for appellate intervention.

1. Permission refused. Wall LJ gave the principal judgment and Neuberger LJ agreed. The orders were within the ambit of Johnson J’s discretion, and there was no proper basis for the Court of Appeal to interfere.
2. The residence decision involved an assessment of the children’s welfare on the evidence. Johnson J was entitled to reject the father’s concerns about the mother’s mental health, accept the social worker’s assessment that the mother could care for the child, and conclude that changing the child’s primary carer was not warranted. Avoiding separation from the older child was also a relevant consideration.
3. The judge was entitled to adopt an unusual cycle of overnight contact. The arrangement reduced the number of handovers, which had been occasions of serious parental conflict, and enabled contact with the father and the wider paternal family. The appellate court found no error in the balance struck between the disadvantages of travel, disruption to nursery attendance and the benefits of contact.
4. A penal notice is very unusual on a contact order. It is, however, conventional on injunctions restraining violence, intimidation or specific conduct where breach may require urgent corrective action. Its use on the injunctions disclosed no arguable error.
5. The court stressed that contact orders are not written in stone. A child’s needs change with age and circumstances, and an application to vary the order may be appropriate where increased contact is in the child’s interests. Parents should not use an existing order as an obstacle to beneficial adaptations in contact.
6. The application for permission to appeal was refused. If further proceedings became necessary, they were to return to Norwich, with the judgments made available to the designated family judge.

1. Court of Appeal (Civil Division): Permission to appeal was refused on 19 August 2004. [2004] EWCA Civ 1188.
2. Norwich County Court: Johnson J made orders on 12 February 2004 refusing the father’s application for residence, regulating contact, and granting ancillary disclosure and injunction relief.