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Mother v Father & Anor [2024] EWHC 272 (Fam) (05 February 2024)

It’s not often that an article on a judgment is longer than the judgment itself, but this may be one of those times!

This case concerned a child, F, who was 11 years old. Parties agreed that F should live with her Mother and spend time with her Father. The issue for the lower Court was the rate at which contact should progress with Father, in particular, overnight contact. F’s Guardian’s view was ‘that there might be a regression in contact if it was pushed onto [F] too early. His view was that it is too early at the stage to make final recommendations as to how the case might further progress in a year or so. This will need to be a child led process.’ [5].

As a result of the Guardian’s view, all parties took what could be said to be an extremely child-focussed approach and agreed that contact should progress at F’s pace and rather than there be an order in place, there would be appropriate recitals reflecting the position. ‘That would allow flexibility of the arrangements to meet F's needs and the views she is likely to express as the scheme for contact with her father progressed’ [6].

However, the Court did not agree with that view and instead, made an order. It is that order which the Mother appealed, and this judgment relates to.

There were two grounds of appeal:

‘(1) The learned judge was wrong to reject the recommendation of the children's guardian and the agreed position of the parents that the time spent with her father, should be progressed in a way consistent with her wishes; and

(2) The judge did not indicate to the parties that she proposed to make an order and failed to invite submissions on that point before she did so.’ [1]

Ms Justice Henke handed down judgment on appeal. The judgment in this case was brief, running to only 8 paragraphs. However, it addressed all issues it needed to, making it an easy read for all. That was likely to be beneficial for the Father in this case in particular, who was a litigant in person.

Ms Justice Henke appeared to have no hesitation in finding that Ground 2 was made out. She found that the fact that the lower Court did not tell the parties that their intention was to make an order, nor did they allow parties to make submissions as to why they said a recital was better than an order for F, was a ‘serious procedural irregularity which amounted to injustice’ [6].

Further, Ms Justice Henke found that ‘given the views of the Guardian, the learned judge should have dealt with them in the judgment. She did not do so and thus ground 1 is also made out’ [6].

Having allowed the appeal, the question then turned to what the next steps should be. The options were to either remit the case for a re-hearing or to deal with the matter there and then. All parties asked the Court to deal with the matter in order to avoid delay, which Ms Justice Henke duly did. All parties were still of a position that ‘a recital is preferable because it provides flexibility, and it avoids the perils of potential enforcement proceeding when the contact as currently ordered is contrary to F's wishes and feelings’ [7]. The parties agreed that should there be difficulties in the future, the way forward is mediation which F herself should be part of.

The last paragraph of Ms Justice Henke’s judgment gives credit to both parents for the way each of them conducted themselves before her. Father in particular, as a Litigant in Person, stood by the agreement he made in the lower Court for a recital rather than an order, despite the fact an order had been made and he may have achieved some advantage from that. It was noted that both parents accepted they had different views, but they were able to put their daughter first.

This judgment, whilst there is no express mention of it, is a reminder of the No Order principle. Does there have to be an order, or can agreements simply be recorded as recitals? It also shows that the Court should be permitting parties a chance to make representations should it be the case that the Court does not agree with the approach being proposed, even if it is an agreed approach by all parties.

The judgment can be found here:

https://www.bailii.org/ew/cases/EWHC/Fam/2024/272.html