Saturday, 26 June 2010

The Court of Appeal drops a clanger

In the judgment S (A Child) [2010] EWCA Civ 705, Thorpe wrongly cites Ward LJ’s finding in an earlier Court of Appeal case:

9. As Ward LJ observed in paragraph 9 of his judgment in the case of Re B (A Child) [2001] EWCA Civ 1968, necessarily the contact order cannot be made unless it can be attached to a residence order providing there for the child to live with a person.

This is not what Ward LJ said, and he himself clarified this point in a case before the appeal court in G (A Child) [2008] EWCA Civ 1468. In that case, the trial judge had made a residence order in favour of the mother, and the appeal by the father came before Ward, who granted the appeal and revoked the residence order, leaving the contact order in place. So... unequivocably... you can have a contact order without a residence order.

The Red Book states:

"In this Act... 'a contact order' means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other; .... 'a residence order' means an order settling the arrangements to be made as to the person with whom a child is to live"

Ward’s actual comments in Re B, were:

9. It seems to me to follow that one cannot have a contact order without having first determined who the person is with whom a child lives because it is that person who has to allow the child to visit or stay with the applicant for the contact order.

This is not the same as him saying a residence order must be in force.

It is worth noting the Children Act Advisory Committee CAAC Report from 1992/1993, P25 guidance:

'Expressed concern that applications were still being made (and presumably granted) so as to provide the parent with care with the security of an order even though there is no dispute about the child's residence'.

If where the child residence is not contested, the ‘no order principle’ should apply. A residence order need only be made if residence is contested, or if there is a 'real' reason to make one. NOT just because there needs to be a contact order made.

Arguing that Thorpe's findings in Re S (regarding the making of residence orders) were made 'per incurium' (without due care) should present little difficulty, but we're already seeing Re S being cited in the family courts, and counsel suggesting that a contact order cannot be made without a residence order... but you know different, and so do we.