S (A Child), Re

In contested children proceedings, the court must make orders within the statutory forms authorised by the Children Act 1989. It has no free-standing jurisdiction to order that a parent have a child’s care, or to allocate holiday care, otherwise than through the statutory residence and contact order regime.

A specific issue order cannot be used to obtain a result which could be achieved by a residence or contact order. Parents may agree arrangements expressed as a child spending time with each of them, and a judge may endorse or schedule that agreement while exercising statutory powers. That consensual course does not authorise the court to impose equivalent non-statutory terms where no compromise has been reached.

The mother applied for a residence order concerning L, aged six. The father appealed from an order of the Reading County Court which stated that L should be in his care at specified times, including during school holidays. A postscript corrected the earlier account of his application: he had sought defined contact and parental responsibility, rather than shared residence.

The order followed a contested hearing at which the parents had failed to reach agreement. The central issue on appeal was whether the County Court had jurisdiction to impose arrangements in the language of parental care, rather than by a residence or contact order under the Children Act 1989.

1. Appeal allowed. Thorpe LJ, with whom Moore-Bick and Aikens LJJ agreed, set aside the County Court order and remitted the case for a further hearing.

2. The relevant statutory powers were those in section 8(1) of the Children Act 1989. A residence order settles the person with whom the child is to live, and a contact order regulates the child’s visits, stays or other contact with the named person. Applying Re B (A Child) [2001] EWCA Civ 1968, the court held that the order’s requirements that L be in the father’s care, including for specified holiday periods, could not stand as free-standing orders outside those statutory forms.

3. The mother’s attempt to characterise the holiday and further-period provisions as specific issue orders failed. Section 9(5)(a) expressly prevents use of a specific issue order or prohibited steps order to achieve a result obtainable by a residence or contact order. It could not therefore supply the missing jurisdiction.

4. Re N [2010] 1 FLR 272 did not assist. Its observation that an order might be expressed in terms of a child spending time with each parent was made in the context of a comprehensive parental agreement. Where parents agree, the court may approve or schedule the arrangement while exercising its statutory responsibilities. Here there was no consensus, as shown by the need for a contested judgment. The statutory foundation was consequently indispensable.

5. The Court of Appeal declined to substitute a shared residence order. The unresolved issues required fact-finding, cross-examination and assessment of the CAFCASS officer’s contribution. Although the arrangements had reportedly worked well, that could not validate an order made without jurisdiction.

• Court of Appeal (Civil Division): Allowed the father’s appeal, set aside the order, and remitted the case: [2010] EWCA Civ 705 .
• Reading County Court: HHJ Donald Hamilton made an order allocating periods in which the child was to be in the father’s care, including school-holiday periods.