For many, the run-up to Christmas is a festive period of antlers, Santa hats, office parties and a general winding down in advance of the new year. Not so for us family lawyers. The courts are ‘choc a bloc’ with hearings, and frequently, the issue of Christmas contact raises its ugly head, with warring parents preparing to rip one another to shreds over who gets the kids on Christmas Day. So it’s up to us to try to lower the temperature and advise parents what to expect in court should they decide to go in for a pre-Christmas battle.

On the whole, courts are unwilling to get into the minutiae of Christmas contact. The Court of Appeal in particular, considers it is “a demonstrably inappropriate forum for the ventilation of such issues” (Lord Justice Wilson in Re A ( A child ) [2009] EWCA Civ 1548). If disputes over contact make their way to the Court of Appeal, they seldom get beyond the permission stage. It has been known to intervene nonetheless, as was the case in RE:  Y  (a Child) [2002] EWCA Civ 377, where Lord Justice Ward told the parents, “the crucial message, in my judgment, is give-and-take and compromise. If they (the parents) have not yet been told in one of their 18 appearances before the courts, I will tell them now…..If they put their son before themselves, they might begin to make a little more progress.”

If Christmas contact is withheld unreasonably, then the Court of Appeal takes a dim view, as was the case in Re C (Children) [2008] EWCA Civ 1389. Here, the lower court not only refused the father’s application for contact over Christmas due to the logistical difficulties of arranging it, but it also slammed an unsuspecting 91 (14) order on him, preventing him from making further applications for two years. It also threatens the father with prison due to his protesting against the outcome. Lord Justice Thorpe was unimpressed, concluding that this was “rough justice”, going on to say that “Mr C is naturally expecting to see his children over the Christmas holiday, he is plainly entitled to see the children over the Christmas holiday and practical mechanical difficulties must not deny him that right”.

If contact is supervised, then there is the problem of contact centres closing down over Christmas. In Re: P (a Child) [2001] EWCA Civ 147, a father took issue with an interim contact order made where maternal family members took over the supervision contact in a case where the mother was accused of attempting to kill herself and her 20 month old daughter at the same time.  The Court of Appeal concluded that the Recorder had taken great care to list the matter and hear live evidence from all the proposed supervisors, thereby satisfying herself that contact would be safe and in the child’s best interest. As the then President, Lady Butler Sloss, put it, “The mother faces an extremely serious charge and consequently, it is entirely right until that matter has been disposed of, that any relationship between her and her child should be monitored with particular care. On the other hand, this little boy of 20 months or so has a close and loving relationship with his mother, and it is extremely important that he should not suffer any more than is necessary during this period”.

Many hearings in the week before Xmas are taken up by emergency applications for the removal of children, as was the case in Re S (Minors) [2010] EWCA Civ 421. Here, a judge had been faced with a lengthy list on the last business day before Christmas and an urgent application to remove the children from the care of a mother. No doubt he was eager to get away to do some last-minute shopping. “I have considerable sympathy for the position in which (the judge) found himself on 23 December. It was the court’s last working day prior to Christmas and he appears to have had a very heavy list. He had no advance notice at all of the profoundly serious proposals which was to be presented to him”, stated Lord Justice Wilson. It transpired that initially, the judge in the lower court had been presented with a care case where the mother was applying to relax an injunction against the father, who was considered a risk to the children by the local authority and the guardian. The judge heard the case briefly in the morning, warning the mother that should she pursue her application, she risked the removal of her children into foster care. The judge then heard the case again in the afternoon whereupon the mother’s advocate argued that the relaxation of the injunction presented no risks to the children, it was simply to enable the parents to communicate over practicalities. This caused the local authority, supported by the guardian, to apply for an interim care order and the case was put over to 4.30pm. However, at that time, the mother changed her position to withdraw her application to relax the injunction in order to keep her children. In spite of her change of position, the judge approved the care plan for removal and, in a short judgment, failed to address the issue of contact, delegating that to the local authority and the guardian. “I am driven to say that the circumstances in which, with his (the judge’s) endorsement, the children were removed from the mother that day was in law entirely unacceptable”, stated Lord Justice Wilson, who went on to heavily criticise the judge on seven grounds, including his failure to consider the issue of interim contact, which resulted in the children not seeing their mother till 30th December. The judge was further criticised for failing to acknowledge the lack of written evidence regarding the safety of the children, failing to honour his original indication that the children would not be removed should the mother not pursue her application, and for not having taken into account the summary nature of the application and listing it as soon as possible after Christmas.

Lord Justice Wilson also noted that the mother was so exasperated at the end of the hearing at 5.30pm that she sacked her legal team and decided to appeal as a litigant in person. She mistakenly attempted to lodge the appeal at a local court. As a result, the application didn’t get to the Court of Appeal until February.  Lord Justice Wilson stated that had she retained her legal team, they would have been aware of the possibility of an emergency appeal, which would have been heard by telephone in the days after Christmas.

Should you need an urgent telephone hearing at the Court of Appeal over Christmas, please contact them (020 7947 7121) before the close of play on 22nd December, as the courts are closed until the morning of 28th December. However, we should all be encouraging our clients to approach Christmas contact in the same spirit as in RE R (a Child) [2000] EWCA Civ 406, where Lord Justice Ward noted that  “The parents have been talking very constructively, indeed, so that for example they have agreed to the always difficult question of Christmas access” considering it to be “just one example of the huge strides that the parents have made to containing sensibly the difficulties they have had in the past”. If, however, a client insists on making unreasonable demands about the arrangements for Christmas, they can expect the kind of treatment Lord Justice Wilson threatened in the matter of A “to use the opportunity, as a single Lord Justice, to bang a few heads together, kick a few backsides, and endeavour to get a little sense into this most unfortunate, exaggerated dispute, which could be resolved for the last time with give-and-take”.