B-Q (A Child)

A non-molestation order and a power of arrest are distinct statutory measures. A power of arrest may be attached only where the statutory condition concerning the respondent’s use or threat of violence is met, subject to the statutory protection alternative. Harassing or intrusive conduct may justify a non-molestation order, but it does not, without evidence of violence or threats of violence, justify a power of arrest. An appellate court may correct an expired order where the appeal raises a proper issue of statutory jurisdiction. A technical inaccuracy in a welfare report does not invalidate a discretionary child-arrangements decision unless it materially affected the judge’s reasoning or conclusion.

The father appealed against orders made by Mr Recorder Ullstein on 6 February 2007 concerning his son’s contact and the mother’s protection. The Recorder dismissed the father’s application concerning the extent of telephone contact, made a non-molestation order under the Family Law Act 1996, and attached a power of arrest. He also determined the father’s application for additional contact under section 8.

On permission being granted, the appeal raised two principal issues: whether the Recorder had jurisdiction to attach a power of arrest, and whether errors in a CAFCASS report, the treatment of the child’s wishes and feelings, and the criticism of the father undermined the section 8 decision.

1. Appeal allowed in part. The Recorder had jurisdiction to make a non-molestation order under section 42(2) of the Family Law Act 1996. The conduct found at rugby, involving extending contact, physical play and insistence on speaking to the mother about contentious matters, could justify that order in the particular circumstances.
2. Section 47 of the Family Law Act 1996 permits or requires attachment of a power of arrest only where the respondent has used or threatened violence against the applicant or a child, unless the court is satisfied that the applicant or child will otherwise be adequately protected. The Recorder’s finding supplied no evidence of violence or threats of violence. The attachment was therefore outside the court’s statutory jurisdiction and was deleted from paragraph 3 of the order. The related order was set aside.
3. The fact that the power of arrest had expired did not prevent the father from pursuing this ground, because the appeal sought correction of an order made without statutory jurisdiction.
4. The challenge to the section 8 decision failed. The mathematical error in the CAFCASS officer’s report did not materially undermine the Recorder’s discretionary conclusion. The Recorder had considered the child’s wishes and feelings through the welfare checklist, and was entitled to regard the father’s evidence and attitude as indicating a continuing pursuit of parity of time.
5. Mr Justice Charles agreed with Lord Justice Thorpe. The application was granted, the appeal was allowed in part as to the Family Law Act 1996 order, and dismissed as to the section 8 order.

1. Court of Appeal (Civil Division): [2008] EWCA Civ 586. Appeal allowed in part. The power of arrest was deleted and the related order was set aside; the appeal concerning the section 8 order was dismissed.
2. Principal Registry, Family Division (Mr Recorder Ullstein): order made on 6 February 2007. The Recorder dismissed the father’s application concerning contact, made a non-molestation order and attached a power of arrest, and determined the section 8 application.