This is a post by Rebecca Wright. Rebecca is a barrister at Garden Court North.
Be warned: Mr Justice Poole has made clear that an undefined provision in a child arrangements order, directing the parents to sort out holiday contact between them, can be successfully appealed as “plainly wrong”. This decision may surprise some family lawyers given that an appellate court is cautious to reverse a trial judge’s assessment of what future arrangements for children should be made. It appears that a broad-brush approach, with the hope that battling parents can find a way to sort arrangements in future, may need to be justified.
Private children law proceedings
This appeal case sheds light on the ‘bread and butter’ work of private children law proceedings. The court and the lawyers are tasked with trying to negotiate, determine and then capture in writing the child arrangements between two parents who cannot, or will not, work together. Emotions are high and every detail feels high stakes.
Protracted arguments over “Tuesday at 4pm” versus “Tuesday at 4.50pm” or “Junction 4” versus “Junction 5” of the motorway for handovers can take hours to resolve (I know, from painful experience). It is therefore no surprise that many family law judges and magistrates refuse to deal with this level of granular detail.
Striking the right balance between detailed scheduling which might need to be in place for the next 10 years or more, versus a more loosely-defined approach designed to encourage parental cooperation and flexibility, can be challenging. Mr Justice Poole in paragraphs 68 to 72 of the judgment acknowledges this fine balancing exercise:
“Attempts to define child arrangements sometimes result in labyrinthine formulations. Understandably, this is exactly what the Judge wanted to avoid. There is merit in simplicity and the court cannot, and should not try to, address every minute of the children’s lives or every practical arrangement. However, a defined order does not have to fall into that trap” (at para. 68).
Key take-away points from the appeal decision
Mr Justice Poole handed down judgment on 21 June 2024 in AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam).
HHJ Clarke in the lower court refused to specify how school holidays should be divided because he is “a fairly big fan of keeping it (a final order) simple”. In the particular circumstances where the parents were clearly incapable of working together and the mother was said to control contact, Mr Justice Poole was not such a big fan of the “keep it simple” approach. The undefined school holidays provision was set aside and replaced with a more detailed provision.
Mr Justice Poole also gave a clear warning to family lawyers seeking clarification from a judge about what was ordered: requests for clarification after the hearing must be made promptly in a single agreed email and should never be used as an excuse to re-argue the case.
The final point of note is in relation to shared “live with” orders. Mr Justice Poole said it was “unfortunate” that the lower court referred to this issue as “label litigation” as the decision around a “live with” order is “not merely a question of attaching a label” (at para. 78). I have encountered similar views about “label litigation” a few times this year when the issue of a shared live with order arises. I will cite Mr Justice Poole when I hear such grumblings in future! In this appeal, the “live with” order in favour of the mother was replaced with a joint “live with” order for both the mother and the father.
So what happened in AZ v BX (Child Arrangements Order: Appeal)?
The case in question was in many ways a standard private children law dispute. The parties were married for 13 years and have three children (aged 13, 10 and 7 years). In June 2022, the father applied for a child arrangements order – in other words, an order which sets out with whom a child lives and the time they spend with the other parent. The final hearing took place in November 2023. Both parties gave evidence and it seems the court was required to determine all the arrangements for the children (in other words, it appears that the parties could not agreed anything).
The matter came before HHJ Clarke in the lower court. He handed down judgment on 5 January 2024. Mr Justice Poole identified the key elements of HHJ Clarke’s judgment as follows (at para. 22):
- there were no safeguarding concerns
- the parents were incapable of working together on child arrangements and other matters in the interests of the children
- the parents’ inability to work together was not because of abuse of one by the other but due to their own perceptions of each other and their mutual distrust
- the parents each failed to appreciate the importance of the other in the lives of the children, which was to the detriment of the children
- the mother had sought to control contact which was not positive given the negative family dynamic
HHJ Clarke made a “live with” order in favour of the mother and set out specific days and times when the children would spend time with the father during the school term.
The provision in relation to school holidays was, however, undefined: “The children shall spend one half of the school holidays with their father on dates and times to be agreed in advance in writing” (at para. 7). The judge did not make any separate provision for special occasions or for handovers.
A transcript of the exchanges between HHJ Clarke and the barristers after judgment was given make it clear that the lower court positively refused to specify holiday arrangements. HHJ Clarke commented (at para. 29) that agreeing arrangements for school holidays was “a normal situation that you would expect between parents that are separated, and that is what we are trying to move these parents to.”
HHJ Clarke, like many judges I have appeared before, did not believe that child arrangements order should be heavy with detail, in part because this could lead to further disputes between the parents:
“I am not a fan of trying to cover every single eventuality and every single circumstance; I am also not a great fan of enormous recitals because along with everything else recitals turn into something to try and beat each other up about, so I am on final orders a fairly big fan of keeping it simple” (at para. 29).
After delivering his judgment, HHJ Clarke asked the parties’ representatives to draft the order to reflect his decision.
Stalemate
If only life was so easy! Paragraph 32 of Mr Justice Poole’s judgment reads: “After protracted communication, the parties were unable to agree the wording of the order.” In other words, the lawyers sent multiple emails attempting to agree an order, probably felt increasingly frustrated, no compromise could be reached and the lawyers had to resort to sending alternative versions to the judge. This is a situation dreaded by family lawyers up and down the country (and, indeed, by parents): you hope that every detail is agreed or determined at court or can at least be agreed through a few emails. “Protracted communications” about the draft order rarely end well.
Clarification
The barristers sought clarification of the judgment and, specifically, around the mechanism for agreeing the arrangements in school holidays (Should the parties agree one month prior to the holidays? Should one party organise holidays one year and the other party the next year? – see paragraph 32). The father’s barrister also asked how the parties were going to agree arrangements for special occasions, including religious festivals (at para. 33).
Mr Justice Poole referred in paragraph 41 to the recent judgment in YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71. Requests for clarification should be made promptly, should not be used as an opportunity to re-litigate points and should be sent as a single document compiled by one of the advocates. Save in exceptional circumstances, there should never be repeated requests for clarification.
Given these principles, Mr Justice Poole did not think it appropriate that the barristers had asked for clarification after the hearing as to how school holidays should be divided. HHJ Clarke was clear that he declined to make a detailed order in relation to school holidays. The advocates should have challenged this point in court if they felt it was not clear (at paras. 58-59).
Grounds of Appeal
The father’s grounds of appeal are set out at paragraph 9 of the judgment:
- Ground 1: that the judge erred in failing to define how holidays should be divided between the parties
- Ground 2: that the judge erred in failing to define how the children should spend their birthdays and / or religious holidays
- Ground 4: that the judge had erred in his assessment of the legal principles and facts of the case when he made a “live with” order in favour of the mother
- Ground 5: that the judge had erred in his approach when he did not direct the children could stay with the father on Sunday nights during term time
Mr Justice Poole allowed the appeal under Grounds 1 and 4 alone. He determined that the combination of orders, namely the undefined school holidays and the “live with” order in favour of the mother, resulted in a child arrangements order which gave too much control to the mother.
This was a family who regularly enjoyed travel abroad: one of the key benefits of a “live with” order is that a parent who has this order can take children abroad for up to 28 days without the other parent’s permission. It was also essential that both parents in this case recognised the importance of the other in the children’s lives.
Mr Justice Poole said that HHJ Clarke had not considered all the dynamics within this particular family and so a “live with” order in favour of the mother was “outwith the range of orders he could reasonably have made” (at para. 91). The “live with” order in favour of the mother was set aside and replaced with a shared live with order (at para. 93).
With regard to the holiday contact arrangements, Mr Justice Poole http://[2024] EWHC 1528 (Fam)concluded that:
“having found that the parents cannot work together in the interests of the children, it was irrational to leave the parents to agree the equal time holiday arrangements without any default provision. The order made was outwith the range of orders that the Judge could reasonably have made in this case and on the findings and evaluation that he had made” (at para. 88).
Mr Justice Poole therefore set aside HHJ Clarke’s order in relation to school holidays and replaced it with an order which provided a defined default position (at para. 93).
With regard to special days (birthdays, religious holidays), Mr Justice Poole found “after some hesitation” that the lower court was entitled to make no separate orders. Mr Justice Poole reached this decision primarily
“because there would be a default position even without a specific order dealing with special days. Once term time arrangements are defined, as was the case, and holiday arrangements are either agreed or resort to a default defined order, then special days fall within those arrangements” (at para. 89).
Final Comment
Overall, this decision appears to send a message to family practitioners that it is necessary to justify, with specific reference to the particular dynamics of a family, why a broad-brush, undefined approach has been adopted when making a child arrangements order. The judgment also confirms that a joint live with order is now generally the default position (in cases with no safeguarding concerns and where both parents play an active role in the children’s lives) — even if, or possibly precisely because, the parents’ relationship is acrimonious.
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.
Our legal bloggers take time out at their own expense to attend courts and to write up hearings.
We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.
Thanks for reading!