N (A Child), Re

A party who agrees to a consent order in court, hears the judge pronounce it, and signs the order cannot subsequently resile from it because of a change of heart or alleged lack of subjective understanding. The court determines consent objectively from the circumstances, including the parties’ conduct and the terms of the document. Once pronounced, the order is binding even though it has not yet been sealed. The sealed order should reproduce the agreed and pronounced terms, subject only to proper correction of typographical or similar errors. The court may also include a provision inadvertently omitted from the signed draft where the hearing establishes that the provision was agreed and ordered.

These were private-law proceedings concerning a child. After several days of negotiation, the father, mother and child’s guardian presented an agreed draft order to the court. One remaining issue was resolved by agreement, and the judge orally pronounced a consent order on 29 July 2008.

The father subsequently asserted that he had not consented to the dismissal of his application for a residence order and sought to have the order sealed in different terms. The court had to determine whether he was bound by the order already pronounced and signed, and what corrections or additions were properly permissible before sealing.

1. The father was bound by the consent order. The draft had been presented as agreed in all respects apart from one identified issue. That issue was resolved, after which counsel confirmed that everything was agreed. The provision concerning dismissal of the father’s residence application was then specifically identified in court, without objection, in the father’s presence.
2. The judge was entitled to conclude objectively that the father had consented. The relevant circumstances included the negotiations, the representations made by counsel, the absence of objection when the provision was discussed, the judge’s oral pronouncement of the order, and the father’s subsequent signature of the order containing the provision. Even assuming that the father did not subjectively understand that he was consenting, that did not justify avoiding the agreement.
3. The order became an order of the court when it was orally pronounced. Its lack of sealing at that stage did not permit a party to withdraw consent or alter the substance of the order. A subsequent change of heart provided no basis for resiling from it.
4. The order was therefore to be sealed in the terms of the document signed by the parties, with corrections limited to typographical errors and amendments necessary to make sense of the text. The court also directed inclusion of the agreed costs provision, which had been omitted from the signed document by slip.

First-instance decision. The court directed the Associate to seal the consent order in the terms identified in the judgment.