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This week I found myself going round in circles on what seemed to be a very simple issue - can the court make a contact order without making a residence order? And I have concluded that I respectfully disagree with Lord Justice Thorpe.
The case in question is Re S (A Child)  EWCA Civ 705 in which the mother sought a sole residence order and the father (acting in person) a shared residence order. The parents having failed to agree arrangements for their daughter, the judge's out-moded indication was that a shared residence order was inappropriate given the distance between their homes (probably no more than 100 miles). He made an order, as drafted by the mother's counsel, providing that the father would ‘have care of the child' for certain periods. The intention no doubt was to avoid using ‘residence' and ‘contact' which, as many mediators will tell you, can be unhelpful labels when trying to promote constructive co-parenting. Far better to describe arrangements for how a child's time will be spent when the parent who has ‘contact' feels of secondary importance to the one who has ‘residence.'
However as the father's counsel correctly pointed out on appeal, the court's powers under section 8 are to make residence (including shared residence) and contact orders. The court does not have jurisdiction to make orders about who has ‘care' of the child. Where the court is imposing an order on the parties in the absence of a consensus, it must find its jurisdictional foundation within the statutory language of contact and residence.
If for example parties reach agreement for a child to ‘spend time with' a parent, then the court (although it does not have jurisdiction to make an order in those terms) will generally endorse it by way of recital or by scheduling it to an order. There may be an order for the dismissal of the application upon the terms of the agreed and approved schedule. One difficulty practitioners may encounter when submitting an agreement which carefully avoids statutory labels is that the court often attaches the terms to a standard form order headed ‘Contact Order' or ‘Residence Order' which can cause upset. Practitioners must also take care to consider and advise whether the agreed arrangements will be enforceable as a contact order under s11J etc Children Act 1989.
Thorpe LJ referred to Ward LJ's statement in Re B(a Child)  EWCA Civ 1968 that one cannot have a contact order without having first determined the person with whom a child lives, because the contact order requires that person to allow the child to visit or stay with the other parent. That makes perfect sense - someone has to be subject to the order and the order must be enforceable against someone. However Thorpe LJ went much further, going on to say that, ‘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'.
I cannot agree with that. It does not sit with the no order principle and there will be circumstances in which a residence order is undesirable since for example it confers the right to take the child abroad for 28 days without the other parent's consent. Citing Re B, both the Family Court Practice 2010 (the Red Book) and Hershman and McFarlane's Children Law and Practice both assert that it is not necessary for there to be a residence order for a contact order to be made (the 2006 edition of the Red Book expressed a contrary view, but this has since been amended). The argument of successful Counsel for the father in Re S, Duncan Brooks, was that the court must first decide with whom a child will live before making a contact order, not that a residence order must be made. That is also my view.
Thorpe LJ's comments are, I would suggest, obiter, the ratio of Re S being that the court cannot impose an order which is not phrased in statutory language. Determination of the important issue of whether a contact order can be made without a residence order should follow considered and detailed argument directed to that matter. Thorpe LJ's comments open the door for that argument to take place.
I am grateful to Madeleine Reardon (co-update editor of Children Law and Practice) for her lucid thoughts on this matter which have assisted in refining my own, and also to Duncan Brooks for his helpful perspective on Re S.
Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.
The Red Book is the acknowledged authority on practice and procedure