K (A Child), Re

A contact order under section 8 of the Children Act 1989 may include directions, conditions and incidental provisions under section 11(7), but those powers are ancillary and cannot be used to order a parent to vacate the family home. Such an ouster order interferes with occupation rights and falls outside the statutory jurisdiction. A judge may depart from a guardian’s recommendation about when a child should travel abroad where the issue calls for a welfare judgment and the judge gives proper reasons. On appeal, the court may substitute a workable contact arrangement where the original order cannot be implemented.

The father appealed against an order made by HHJ Newton in the Chelmsford County Court concerning contact between his 11-year-old daughter and her mother, who predominantly lived in Bulgaria. The order provided for three weeks’ summer contact, required the father to vacate the family home, and required the mother to contribute towards alternative accommodation. It also required the father to take the child to Bulgaria during the October half-term.

The appeal challenged the statutory jurisdiction to make the ouster provision, the treatment of the father’s partner and son, the departure from the guardian’s recommendation, and the timing of the Bulgarian visit. The central issues were whether section 11(7) authorised the order and whether the judge was entitled to adopt a different welfare assessment from the guardian.

1. Appeal allowed in part. The appeal succeeded in relation to paragraphs 2 and 3 of the order. The appeal concerning paragraph 4, requiring the October visit to Bulgaria, was dismissed.
2. The county court judge had relied on section 11(7) of the Children Act 1989 when requiring the father to vacate his home during contact. Section 11(7) permits directions about how a section 8 order is to be carried into effect, conditions, provisions of limited duration, and incidental or consequential provisions. Those powers are ancillary to the making of a section 8 order. They do not authorise a mandatory ouster order interfering with a parent’s clear right of occupation. A reference to the father’s parental responsibility could not enlarge the statutory jurisdiction.
3. The court followed Re D (Prohibited Steps Orders) [1996] 2 FLR 273, which held that an effectively equivalent ouster order was outside the jurisdiction. The passage reproduced from that decision preserved Re O [1995] 2 FLR 124 on its particular facts, while rejecting any suggestion of an unfettered discretion under section 11(7).
4. The challenge concerning the father’s partner and son failed. The evidence before the judge was that they had returned to Bulgaria some six months earlier and that the father had no plans to see his son. The later assertion that they were shortly to return did not establish an error by the judge.
5. The judge was entitled to make a welfare judgment different from the guardian’s recommendation about the timing of the Bulgarian visit. The child’s reluctance was qualified, the father was an appropriate trusted adult, and the judge gave reasons based on the priority of restoring the child’s relationship with Bulgaria and her maternal family.
6. Because the original summer arrangement could not operate as intended, the Court of Appeal substituted a guesthouse arrangement for up to three weeks. The father was to pay half the cost, with the mother required to give notice of the proposed visit.

1. Court of Appeal (Civil Division): Appeal from the Chelmsford County Court allowed in part. Paragraphs 2 and 3 were displaced and a guesthouse arrangement substituted; paragraph 4 was upheld.
2. Chelmsford County Court: HHJ Newton made the order on 20 June 2011, with the order issued on 4 July 2011.