The case of S (A Child)  EWCA Civ 705, recently reported on Family Law Week, involved a technical point of language. It concerned a six year old child, where the mother sought a sole residence order and the father sought shared residence.
A two-day hearing was fixed before HHJ Donald Hamilton at the Reading County Court on the 11th and 12th of June. For most of those two days the parties were allowed to negotiate, but 'all sorts of issues escaped agreement' and the judge had to decide those issues late on the second day. His order comprised fifteen recitals setting out the various matters that were agreed between the parties, and nine paragraphs of order. The entire order is not set out in the report, but we are told that:
"Paragraph 1 of the order provides: "The father shall have the care of [L]..." Slightly different language in paragraph 2: "The care of [L] within the school holidays shall be arranged as follows:". In paragraph 2c the language moves into the passive: "L will be cared for by her father". Then in d "L will spend Christmas 2009 with her father". And in paragraph 4 the language becomes: "L may be in the care of her father for such further alternative periods as shall be agreed in writing""
The father was dissatisfied with the order (indeed, with his whole experience during the two days of trial), and appealed. The primary ground of appeal was that the court simply has no jurisdiction to issue orders in such terms.
Lord Justice Thorpe agreed. He pointed out that section 8 of the Children Act defines 'a contact order' as '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' and that: "As Ward LJ observed in paragraph 9 of his judgment in the case of Re B (A Child)  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" (also paragraph 9 of this judgment). (With the greatest respect to Lord Justice Thorpe, Lord Justice Ward did not say that in Re B, rather 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" - there does not, I believe, therefore need to be a residence order in force before there can be a contact order.)
Lord Justice Thorpe then looked at the definition of a residence order ('…an order settling the arrangements to be made as to the person with whom a child is to live') and therefore found that: "there is nothing within the statute to enable a court permissibly to impose provisions as to one or other parent either caring for a child or having the care of a child or dividing a holiday other than in the form of a contact order" (paragraph 11).
Counsel for the mother sought to found this language not as a residence or contact order but as a specific issue order, but this was swiftly dealt with: paragraph 9(5) (a) of the Children Act makes it clear that the court may not exercise its powers to make a specific issue order or prohibited steps order with a view to achieving a result which could be achieved by making a residence or contact order.
Counsel for the father (somewhat generously) drew the attention of the court to Re N (A Child) EWHC 1807 (Fam), in which Munby J approved the use of similar wording in a consent order. However, in that case the parties had reached a full agreement, whereas in this case they clearly had not - there is nothing to prevent parents reaching agreement in whatever terms they wish (and for the court to approve that agreement, perhaps as a schedule to an order), but if the court is being asked to impose an order upon the parties then "it must find its jurisdictional foundation within the statutory language" (paragraph 16).
Accordingly, the order was set aside and the case remitted for further hearing in the Reading County Court. The court refused counsel for the father's suggestion that it exercise its discretion to make a shared residence order as, although the arrangements enshrined in the order "are to all intents and purposes a good illustration of a modern shared residence order operating in detail", the issues had not been sufficiently investigated to enable the Court of Appeal to make such an order. However, the arrangements set out in the order have apparently "worked extremely well in practice" (paragraph 17), and Lord Justice Thorpe expressed the wish that the parents can agree matters, and avoid the expense and stress of retrial. Let us hope that they do.
Two further points, one serious, the other a curious coincidence:
1. Whilst he found that the objective of the court in leaving the parties for so long to attempt to reach settlement was laudable in one sense, in another sense it was misguided: "There are many instances in which the pursuit of an accord extends rather than reduces the duration of a final hearing" (paragraph 2) and: "very often in these cases where there is a head-on conflict between parents, one saying I want a sole residence order and I am not prepared to compromise, the other saying I want a shared residence order and I am not prepared to compromise, by far the quickest route to resolution is for the judge to hear the case out and deliver his judgment" (paragraph 17).
2. This was an appeal against a decision of His Honour Judge Donald Hamilton sitting at the Reading County Court. The cited case Re B was also an appeal against an order of a Judge Hamilton, although it was not clear there which Judge Hamilton. However, when pondering exactly which Judge Hamilton made the original order in Re B, Lord Justice Ward did give a descriptive mention of Judge Donald Hamilton (presumably the same one): "We are told it is neither Judge Donald Hamilton, he of imposing physique, who sits a great deal in Birmingham and Coventry, nor is it His Honour Judge John Hamilton who ordinarily sits in Luton. I believe it is His Honour Richard Hamilton, recently retired from the Liverpool County Court".