H (A Child), Re

In contact enforcement proceedings, where the respondent says that contact failed because the child was reluctant or refused, the applicant bears the burden of proving that the child was not reluctant or refusing. Findings made using the wrong burden or standard of proof, or by treating reasonable-excuse matters as breach, should be set aside. Relevant evidence about past events may remain available for a later hearing concerning the child’s future arrangements. A contact order does not require a residence order in every case. It requires a person, defined or capable of definition, with whom the child lives and against whom the order can operate. This clarification was obiter but intended to prevent procedural arguments obstructing decisions about contact.

The father sought enforcement of contact arrangements after the mother failed on occasions to facilitate contact between him and their daughter. The recorder initially decided only whether contact should be supervised, but later breaches led to an October hearing at which he made findings and declarations against the mother. A residence order application was also issued, and a guardian was appointed for the child.

Permission to appeal was limited to whether the correct standard and burden of proof had been applied, and whether matters going to reasonable excuse had been treated as breach. The appeal also raised, for the first time, whether contact enforcement could proceed without a residence order in favour of the person caring for the child.

Appeal allowed. Lord Justice Tomlinson agreed with Lord Justice Thorpe.

1. The court applied the guidance in L-W. Where a respondent to contact enforcement proceedings asserts that contact did not take place because of the child’s reluctance or refusal, the applicant bears the burden of proving that the child had not refused or been reluctant. That burden does not rest on the respondent. The recorder’s findings were therefore affected by the wrong approach to the standard and burden of proof, including the treatment of reasonable-excuse issues.
2. The appropriate disposal was to set aside the offending October findings and declarations. The order was purified by deleting declarations (i) to (iii), findings 2 and 3 in the schedule, and amending the remaining finding so that it stated that the mother had on occasions frustrated contact. Setting aside those findings did not prevent reliance at a future hearing on past evidence which remained relevant and necessary to decisions about future arrangements.
3. The court then addressed a separate statutory argument, although it was not in issue in the appeal. The wording of Lord Justice Thorpe’s earlier judgment in S [2011] 1 FLR 183, read in isolation, was capable of misinterpretation.
4. In the ordinary case, as explained by Ward LJ in Re B (A Child: Contact) [2001] EWCA Civ 1968, 1 ALL ER 349, a residence order identifies the person with whom the child lives and a contact order operates against that person. However, the Children Act does not require a residence order in every case. It requires a person with whom the child lives who is defined or capable of definition. Thus, where the parents agree that the mother is the primary carer, a contact order may be made against her even without a residence order.

The formal order was that the application was allowed.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 585, 7 April 2011: allowed the appeal and set aside or amended the specified findings and declarations in the October order.
• Leeds County Court — Mr Recorder Fairwood made findings and declarations against the mother following contact enforcement proceedings and a residence order application. The appeal challenged the standard and burden of proof and the treatment of reasonable excuse.