N (A Child), Re

In children proceedings, the court has a broad discretion to control the manner and extent of a hearing. The absence of ordinary res judicata and issue-estoppel rules does not entitle parties to relitigate issues at will.

Where a consent order has generally worked, the court should not impose non-consensual additions or variations without compelling justification. Parents should assume responsibility for resolving ordinary practical matters themselves. The court may refuse a full rehearing where the evidence is sufficient, the applicant’s prospects are remote, further litigation would harm the child, and no solid advantage would result.

There is no legal principle that a boy of a particular age should ordinarily live with his father. Welfare depends on all the circumstances.

The proceedings concerned arrangements for N, born in 2001, following many years of private law litigation between his unmarried parents, A and G. A detailed consent order was made on 29 July 2008, later supplemented by agreement on 8 July 2009. A subsequently sought numerous declarations, variations and additional orders, including a sole residence order and the reopening of the arrangements. G and N’s guardian opposed reopening the case and sought an order restricting further applications under section 91(14) of the Children Act 1989.

The central questions were whether the consent order should be corrected, clarified, varied or replaced; whether disputed practical matters should be determined by the court; and whether A should receive a full rehearing involving oral and expert evidence.

1. Consent order. The application to correct the sealed consent order was dismissed. The order accurately reflected both the judge’s intention and the document signed by A. There was therefore nothing to correct. The application for a declaration that the order was a joint or shared residence order was also dismissed. The agreed expression that N should “spend time with” each parent deliberately avoided the terms residence and contact, and required no further clarification.
2. Construction and practical arrangements. The court clarified the meaning of the order without making formal declarations. Paragraph 8(c) dealt with time spent with the father in addition to the regular arrangements and did not deprive him of regular Wednesday time where the relevant day was not covered by that paragraph. Paragraphs 19 and 20 required the travelling parent to provide relevant travel information before, in some circumstances, the mother was required to release the passport. No compensatory time or finding of breach was ordered.
3. Further variations. The court declined to impose the proposed additions and variations. A consent order should not be progressively unravelled by non-consensual judicial intervention absent compelling cause. Parents must exercise their parental responsibility under section 3 of the Children Act 1989 by resolving ordinary issues concerning their child’s education, belongings, religious activities and arrangements. Continued judicial micro-management would undermine that responsibility and damage N’s welfare.
4. Reopening the case. The court had a broad discretion in children proceedings to determine the appropriate procedure. The ordinary doctrines of res judicata and issue estoppel did not apply in their usual form, but parties were not entitled to relitigate issues at will. Relevant considerations included the sufficiency of the existing evidence, the likely effect of further evidence or cross-examination, the child’s welfare, the applicant’s prospects of success, and whether justice required oral evidence. There was sufficient material to decide the applications, A’s prospects were remote, and continued litigation was seriously detrimental to N. His applications to reopen the consent order and obtain residence were dismissed.
5. Residence and gender. The asserted principle that a boy of N’s age should ordinarily live with his father did not exist. Age and sex were merely considerations within the welfare assessment. The court followed the Court of Appeal’s rejection of such a principle.
6. All remaining applications by A and G were dismissed, save that no order was made on two of A’s construction applications. The orders were without prejudice to the supplemental consent order of 8 July 2009.