In sympathy with the verbosely worded Children and Families Act, our headline should read 'the lack of need for decisions determining the person(s) with whom the child should live as part of applications for contact within child arrangements orders' but we thought you might nod off before you got to the interesting bits!
A discussion with a legal adviser this week raised an issue we've seen before, albeit since 2014 with the new twist of judges needlessly completing parts of the draft court order paperwork related to 'the person with whom the child lives' when only matters related to contact are at issue. So again, the question:
Does a decision as to residence need to be made prior to, or as part of, a decision relating to contact, when the court is making a child arrangements order?
The answer is no, but there is confusion, and confusion due to a judgment made without care (per incuriam) by Lord Justice Thorpe (now retired) in the case S (A Child) [2010] EWCA Civ 705 when he said (at paragraph 9):
"a contact order cannot be made unless it can be attached to a residence order providing there for a child to live with a person."
LJ Thorpe believed himself to be repeating comments made by Lord Justice Ward in 2001 in the case Re B (A Child) [2001] EWCA Civ 1968. However, in that case, LJ Ward was correcting a trial judge's error in oddly making a shared contact order, and Ward also commented that the more appropriate order would be one for shared residence.
Lord Justice Ward did however give clarification on the lack of necessity for a residence order when making a contact order, in the case Re G (A Child) [2008] EWCA Civ 1468. Thorpe's judgment, in the 2010 case was therefore made per incuriam (without care), as he failed to make reference to this later judgment by Ward, and misdirected himself. Indeed, in the 2008 appeal case, Lord Justice Ward had discharged a residence order on the grounds the trial judge havd made an unnecessary residence order (where the contact order WAS granted).
Judicial guidance contained within the 2008 judgment supports that the part of the new CAP draft order paperwork relating to 'the person with whom the child lives' need not be completed when contact is the issue before the court. Thorpe was wrong, and the courts today might need reminding of this history.
As for Lord Justice Ward and his wisdom, we'll leave you with further comments he made in that 2008 judgment on the 1989 wording of the Children Act, and one can only wish that that sentiment was echoed through the courts again and again, and repeated today:
17. The whole purpose of the Act in getting rid of the concept of custody and access, with concomitant thoughts that they each carry different rights and power and authority and regulation and control, all of that should have been swept away, so that you have an order which conveys no right but simply regulates a factual state of affairs. The rights over the child are now conferred by parental responsibility. Each has parental responsibility and each is as fully entitled to exercise that responsibility while the child is in his or her care as the other. So when the child is with father he will determine when she goes to bed, when she is to brush her teeth and what she is to eat for breakfast, and the mother has no power of control nor does he. So it is about time that those practical lessons were learned. Re G (A Child) [2008] EWCA Civ 1468...as it's 2:46 in the morning, forgive me if I wax lyrical, and just in fun:
Oh distinguished, wise and noble Lord,
Don't heed old Thorpe but LJ Ward!