Z ( A Child), Re

When making an interim child-contact order, the court must apply the welfare checklist in the Children Act 1989 to the evidence available. It must give proper weight to the child’s age, health, primary carer, feeding arrangements, and the likely effects of separation and parental anxiety. A parent’s profession does not, without supporting evidence, establish that extensive staying contact is appropriate. The court must explain why the chosen arrangement better meets the child’s needs than a less intrusive alternative such as day contact. Pending a full hearing, the interim order should be as neutral as possible. It should preserve both parties’ positions while securing meaningful contact and should not effectively determine the substantive dispute.

The mother appealed against an interim contact order made by HHJ Richards in the Principal Registry of the Family Division. The order required her to make Z, a four-and-a-half-month-old child in her sole care, available for extended contact with his father pending a full hearing. Z lived with his mother in Manchester, suffered from clubfoot, and was still partially breastfed. The father lived in Ilford and had not seen Z for several months. Allegations between the parents remained unresolved. The central issue was what interim contact arrangement would promote Z’s welfare without prejudicing the determination of the substantive issues at the full hearing.

Disposition and interim contact

The Court of Appeal unanimously allowed the appeal and substituted a graduated contact arrangement. Lord Justice Scott Baker gave the leading judgment. Lord Justice Leveson and Lady Justice Arden agreed.

1. The judge had recognised that Z’s welfare was paramount and referred to the welfare checklist in section 1(3) of the Children Act 1989. However, he did not give sufficient weight to the most relevant features: Z’s very young age, his status as the mother’s sole carer, his clubfoot and associated treatment, the fact that he was still being breastfed, and the likely unsettling effect of removing him from his mother for several days.
2. The judge also assumed that the father had suitable parenting skills because he was a general practitioner with paediatric experience. That conclusion was inadequately supported by evidence, particularly given his limited opportunity to care for Z. The judge failed to explain why extended staying contact was preferable to day contact or why Z’s needs could not be met by a less extensive arrangement.
3. Where the evidence has not been tested and a full hearing is pending, the interim order should be as neutral as possible. It should hold the ring between the parties, avoid prejudicing either side, and must not effectively determine the substantive dispute in favour of one parent.
4. The mother’s proposed order went too far in restricting contact. The court therefore ordered short periods of contact at a Manchester contact centre, followed by two overnight stays per fortnight with the father staying in Manchester, continuing until the full hearing. The proceedings were transferred to Manchester County Court and the full hearing was directed to take place before the designated family judge or another judge directed by him.

Lord Justice Leveson emphasised that the arrangement did not prejudge the parents’ unresolved allegations and was intended to allow the father to re-establish an age-appropriate relationship with Z without disadvantage arising solely from the previous lack of contact.

• Court of Appeal (Civil Division): In [2010] EWCA Civ 448, the appeal was allowed with conditions. The interim contact order was substituted, and the proceedings were transferred to Manchester County Court for a full hearing.
• Principal Registry of the Family Division: HHJ Richards made the interim contact order under appeal on 28 January 2010.