Wednesday, September 15, 2010

Can the court make a contact order without making a residence order?

There is a good article by Hayley Trim in Family Law today discussing this issue. The question arises from the judgment of Lord Justice Thorpe in Re S (A Child) [2010] EWCA Civ 705, where he referred to the observation of Lord Justice Ward in Re B (A Child) [2001] EWCA Civ 1968 that one cannot have a contact order without having first determined who the person is with whom a child lives, and extended this to read that a contact order cannot be made unless it can be attached to a residence order.

I recall that when I read Re S I felt very uneasy about this proposition. After all, many is the time that I've seen courts make contact orders without making residence orders - was the court wrong on every such occasion? On the other hand, could Lord Justice Thorpe be wrong? Hayley Trim believes that he is, and I agree with her. Lord Justice Ward was merely stating the obvious point that before a contact order is made one must first determine with whom the child lives "because it is that person who has to allow the child to visit or stay with the applicant for the contact order", but that is not the same as saying that a residence order must be made in favour of that person.

4 comments:

  1. What makes life interesting here in the US, John, is when our courts issue an ex parte order barring contact, right smack dab when a parent is with his/her kids...

    (See my latest blog post on this, if you have a chance- I'd love to know what you think!)

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  2. Is that based on a real case? If so, it is difficult to comment without knowing all the facts, but still pretty appalling if an order was enforced in that way.

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  3. No, John, it's truly fiction. An excerpt from my novel-in-progress (the manuscript is complete but being revised by me until all hours of the day and night-- I have some agent interest but I'm holding off on sending them my partial until the revisions are complete.)

    Violating a court order (contempt of court) can lead to arrest isn't it the same in the UK?), especially if a parent is prohibited from 'absconding' with the children.

    I simply took that concept and ratcheted it up a few notches for the story.

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  4. Yes, breach of an order can lead to arrest, if the order has a power of arrest attached to it. However, one would hope that the police would handle the matter with a little more sensitivity!

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