B (a child), Re

A family judge has wide case-management powers, but cannot determine substantive residence or contact issues without a properly constituted hearing and a fair opportunity for the parties to make representations. That remains so where the judge seeks to bring prolonged litigation to an end or considers that a particular arrangement would benefit the child.

A court may proceed in a party’s absence to determine an application of which that party had notice. It may not use that hearing to decide wider, unnotified or unagreed issues. A detailed contact order substantially altering existing arrangements, made without the absent parent’s input and without anticipated welfare evidence, cannot stand.

The father appealed against an order made by Ms Recorder Ralphs in the Southampton County Court on 18 August 2006. Residence and contact issues had been adjourned for an urgent substantive hearing, following the release of HHJ Milligan from the case. A CAFCASS officer had been directed to investigate and report.

The mother’s application before the Recorder concerned removal of a penal notice. The father did not attend, but wrote seeking interim contact arrangements until the substantive hearing. The Recorder treated the correspondence as inviting determination of all outstanding issues. She made a detailed order governing residence and contact for approximately a year, discharged the forthcoming hearing and released CAFCASS from preparing its report. The central issue was whether the Recorder had acted beyond the matters properly before her and denied the father a fair hearing.

1. Appeal allowed. The Recorder’s order was set aside, save for the provision removing the penal notice from the earlier order. Directions were given for an expedited substantive hearing and an interim contact arrangement.
2. A judge dealing with family proceedings under Children Act 1989 Part II has a wide scope. That jurisdiction does not permit the judge to determine the future residence and contact arrangements for a child unless the matter has been properly brought before the court and the parties have had a fair opportunity to make representations.
3. The father’s letters sought defined contact to cover the period before the anticipated substantive hearing. They did not amount to an invitation to determine all outstanding residence and contact issues. The Recorder therefore acted beyond the issues properly before her by making a detailed order for the following year, imposing a geographical restriction, dismissing the father’s residence application and discharging the CAFCASS reporting obligation.
4. The absence of oral evidence and an up-to-date CAFCASS report reinforced the procedural unfairness. The Recorder should not have attempted to create closure in an ongoing, highly charged dispute without first giving the father notice and an opportunity to make whatever representations he wished.
5. The penal notice stood on a different footing. The father had notice of the mother’s application to remove it, and although he did not attend, the Recorder was entitled to determine that application in his absence. She could also have made a contact order insofar as it was agreed by the parties, but no such agreement existed.
6. Undertakings, like injunctions, should be clear and concise so that their obligations and any alleged breach can be understood. The matter was directed to an early directions hearing and an expedited full hearing before the substantive issues were finally resolved.

1. Court of Appeal (Civil Division): allowed the appeal against the Recorder’s order. The order was set aside except for the removal of the penal notice, with directions for an expedited hearing.
2. Southampton County Court: Ms Recorder Ralphs made a detailed residence and contact order on 18 August 2006, despite the listed application concerning the penal notice and the father’s absence.