P (Children), Re

A contact order must be assessed as a whole. Replacing two overnight contact periods with two overnight periods at a different point in the week is not necessarily a reduction in contact, even if the parent loses a weekend day and receives a weekday instead. An occasional full weekend for the other parent may be a proper exercise of discretion where it serves the children’s best interests and the judge gives coherent reasons. An appeal will not succeed merely because the resulting arrangement is disappointing to one parent.

The father appealed against an order made by Aldershot and Farnham County Court concerning the residence and contact arrangements for his two children. The children were to live with their mother, with continuing staying contact with the father. Ward LJ refused permission to appeal on the proposed residence grounds but granted permission in relation to contact. The father later sought to renew the residence challenge and argued that the contact order was inconsistent with the judge’s statement that contact would not be reduced. The central issue was whether replacing Thursday-to-Saturday contact with Wednesday-to-Friday contact, while allowing the mother an occasional full weekend, amounted to an impermissible reduction or inconsistency.

1. Permission to appeal. Lady Justice Black held that the father had no right to renew, at the hearing, his application for permission on residence grounds which Ward LJ had refused at an oral permission hearing. The rules and practice direction relating to Civil Procedure Rules 1998, Part 52 made that position clear.
2. Assessment of contact. The contact order had to be considered in substance and as a whole. The father retained two overnight stays each week. Moving those stays from Thursday-to-Saturday to Wednesday-to-Friday meant that he lost a Saturday daytime period but received contact on a weekday instead. That did not establish that the trial judge had reduced contact or acted inconsistently with her stated approach.
3. Exercise of discretion. The order had a sound basis in the judge’s view that the children should occasionally have a full weekend with their mother. The judge was entitled to regard that arrangement as being in the children’s best interests. She had explained her decision in a well-constructed and thorough judgment, and no error in the exercise of her discretion had been established.
4. Accordingly, the appeal was dismissed. Lord Justice Patten agreed.

• Aldershot and Farnham County Court: HHJ Miller ordered that the children live with their mother and made provision for contact with their father.
• Court of Appeal (Civil Division): Ward LJ refused permission to appeal on the residence grounds but allowed the contact issue to proceed. The court declined to reopen the residence issue and dismissed the contact appeal: [2011] EWCA Civ 1016.