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The judge erred in varying a shared residence order where no application for variation had been made, the suggestion had been that of a social worker and had been made without legal basis and where the parties were unrepresented and had not properly had the occasion to contest the variation. He had also erred in deciding not to make an order as to contact; although weight should be given to the views of the children, it was important to take into account other aspects of the case. Where the parties were unrepresented, the judge and children's guardian should be careful to guard against procedural and other unfairness.
7 November 2012
Court of Appeal (Civil Division)
Thorpe, Lloyd and Black LLJ
(1) CG and CW, a same-sex couple, cohabited during a period of 8 years. During that time CW gave birth to two daughters conceived through artificial insemination. The relationship broke down in 2003 and CW sought shared residence and contact. Following a series of court cases, the parties were subject to a shared residence order with CG's home as primary residence. CG had a history of flouting court orders, and had moved the children to Cornwall in breach of the order. CW had had no contact with the children since November 2011. At Truro County Court, the judge had ordered that the shared residence order be varied to give sole residence to CG and that there should be no specific order regarding contact. In doing so he followed the recommendation of the guardian appointed under rule 16.4 Family Procedure Rules 2010.
(2) CW appealed the variation and the failure to make an order regarding contact. She argued that the judge had erred in his variation of the shared contact order and was wrong not to make an order which would have allowed direct contact to be pursued.
(3) Thorpe LJ (with whom Lloyd and Black LLJ agreed) held (i) that the judge erred in varying the shared residence order. This was a procedural error, as there was no application for variation and indeed CG supported continuation of the shared residence order in spite of the fact that she had had no contact with the children since November 2011. Variation had been suggested by the guardian rather than either party, had only been suggested three days before the trial and was based on his role as social worker as opposed to any legal argument. Finally, it had not been taken into account that CW had not benefited from legal representation; if she had, she surely would have contested the variation . (ii) The judge's decision not to make a specific order as to contact was premature. Although the children had had no contact with CW for nearly a year and had expressed a desire not to resume contact, the guardian himself had observed that this was not borne out by their actions. It was important to recognise that the children were aware of CG's reluctance for CW to continue to see the children. The judge should have taken into account the assessment of others involved in the case that CG hoped to estrange CW from the children. CW had always been a warm and loving parent, and the importance of her playing a continued role in the children's lives had been recognised both by an expert in the field and the appellate courts. The judge had not taken proper account of the relationship between the children and CW and the impact of that relationship ending  - ,  - .
Obiter: the guardian should have taken the initiative in returning the issue to court. The delay in returning to court had limited the options now available to the court. As the only party with legal representation at earlier stages of proceedings, the guardian and judge should be aware of the need to avoid procedural and other unfairness to the unrepresented parties  - , .
Appeal allowed. Order set aside and application remitted for retrial. Immediate direction for the re-engagement of the expert
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