The Mother v The Father & Anor

Where parents and a children’s guardian agree that arrangements for a child’s contact should develop at the child’s pace, the court must engage with the guardian’s evidence and the child’s wishes and feelings. If the court proposes to make an order instead of recording the arrangement by recital, it must inform the parties and invite submissions. Failure to do so may amount to a serious procedural irregularity causing injustice. A flexible recital may be preferable to an enforceable order where contact arrangements must respond to the child’s developing wishes and needs.

The mother appealed against an order made by HHJ Williscroft in the Family Court sitting at Derby on 21 June 2023. The parties agreed that the child, F, should live with her mother and see her father. The dispute concerned the rate at which contact should progress, particularly towards staying contact.

The children’s guardian reported F’s wishes and feelings and recommended that progression should be child-led and occur at her pace. The parents and guardian expected the proposed arrangements to be recorded by agreement and recital. The lower court instead made an order without notifying the parties or inviting submissions on that course.

1. The appeal was allowed. The lower court’s decision to make an order, rather than reflect the agreed scheme by recital, was made without informing the parties of the proposed course or inviting submissions. That was a serious procedural irregularity amounting to an injustice.
2. The lower court also failed to deal in its judgment with the children’s guardian’s views, despite those views being material to the appropriate pace of contact and having supported the agreed child-led approach. The first ground of appeal was therefore also made out.
3. Remission for a rehearing was unnecessary. Contact was progressing well in accordance with the parties’ agreement, and all parties agreed that a recital would provide necessary flexibility and avoid potential enforcement proceedings if the ordered arrangements became inconsistent with F’s wishes and feelings.
4. The court set aside the relevant parts of the order, including recital 7 as identified in the judgment, and substituted a recital for the relevant provisions in paragraph 2(d)–(g). The appellant’s counsel was directed to draft the amended order for approval.
5. The court endorsed mediation, with F participating so that she could express her wishes to a neutral third party, and emphasised that future progression should be child-led rather than court-led.

• Family Court sitting at Derby: HHJ Williscroft made an order on 21 June 2023 concerning the progression of F’s contact with her father.
• High Court (Family Division): The appeal was allowed. The relevant order provisions were set aside and replaced by a recital.