Thursday, September 22, 2011

Re K (A Child): No jurisdiction to require father to vacate family home to faciliate contact

Re K (A Child) [2011] EWCA Civ 1075 (28 July 2011), reported today on Bailii, concerned a judge's attempt to establish contact between an eleven year-old child and her mother, who resides predominantly in Bulgaria.

The Facts: The child has for some four years resided with her father in England, and he was granted a residence order on the 15th October 2010. On the 20th June 2011 a hearing took place to determine issues relating to the mother's contact. Neither party was represented, although the child had been made a party and was represented.

The judge ordered that there should be direct contact for a period of three weeks at the family home and that the father should therefore vacate the property for this period.

The father appealed against this (and another order, which I will not deal with here), primarily on the basis that the judge had no jurisdiction to make such an order.

Held: Mr Justice McFarlane gave the leading judgment. He said (at paragraph 20) that the judge had purported to impose the condition on the contact order under section 8 by referring to Section 11(7) of the Children Act.

However, he said (at paragraph 22) that the question of whether this sort of order was within section 11(7) had already been determined by the Court of Appeal, in the case Re D (Prohibited Steps Orders) [1996] 2 FLR 273. In that case, the court was considering a prohibited steps order in which the court had prevented the father from staying overnight in the matrimonial home, effectively an ouster order, and Ward LJ held that that was not within the court's jurisdiction:
"Section 11.7 in my judgment is ancillary to the making of a Section 8 order, it is governed by the provisions for making of a Section 8 order and does not allow the importation by this back door of the matters laid down in the Matrimonial Homes Act or proper adjustment of rights of occupation "
Mr Justice McFarlane therefore concluded (at paragraph 23):
"It would seem to me that, so far as the legal context is concerned, the current case is on all fours with that decision and the judge's order requiring the father to vacate his home under Section 11(7) cannot stand and I would therefore, speaking for myself, allow the appeal on ... that basis."
Interestingly, in a concurring judgment Lord Justice Ward praised the judge "for coming to a sensible pragmatic conclusion" which "had been frustrated by the idiocies of the law".

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