On 7 November 2012 the Court of Appeal considered whether to overturn a decision to substitute a sole residence order for that of a shared residence order, which had effectively severed contact between the Appellant parent and her children.
The relationship between W, the appellant, and G, the first respondent, began in 1995 and resulted in their co-habitation from that year until their separation in May 2003. During their co-habitation G gave birth to two daughters following her insemination with the sperm from an anonymous donor.
The relationship broke down and W commenced proceedings on the 10th September 2003 seeking shared residence and contact. Sole residence was granted to G but with specific issue orders designed to incorporate W centrally in the lives of the children with generous contact.
However, a CAFCASS officer recorded that G did not wish W to be involved in the lives of the children and did not recognise her as a parental figure who should play a part in their lives.
W successfully appealed with the result that a shared residence order replaced the sole residence order. However, G’s reaction was to move the children to Cornwall without W’s consent.
The subsequent result was years of litigation, with W attempting to enforce or amend contact arrangements when faced with repeated variance or non-compliance on the part of G. The dispute was so entrenched that it was referred to the Court of Appeal three times and even to the House of Lords on one occasion. W spent approximately £200,000 in total on the litigation and was eventually forced to act in person.
In 2009 a retiring CAFCASS officer stated:
“As an agency CAFCASS and myself as part of the agency, have tried everything within our powers to facilitate contact.
Unfortunately, however this position has been reached, the girls do not view W as part of “their” family and therefore do not see contact as valid or worthwhile.”
Further orders to reinstate contact and to implement a therapeutic programme for the children were ultimately not adhered to. The matter consequently found its way back to the Court of Appeal.
At first instance the trial judge relied heavily on a report of the Children’s Guardian who had recommended there be no specific order with regard to contact and that the shared residence order be replaced with a sole residence order in favour of G. The judge accepted both of these recommendations.
On appeal the Court lamented the fact that the Guardian’s report had not been available to W as a litigant in person until three days prior to the trial. It was also noted that the trial judge ought to have placed weight on the slender nature of the Guardian’s involvement which had been apparent given his prior application to be discharged from the case.
Moreover, the Court found that there had been procedural unfairness in so far as there had been no application or submission for variation of the shared residence order by G. The Court stated that had W been legally represented she would undoubtedly have challenged the variation on both substantive and procedural grounds.
The trial judge had also rejected W’s application to adjourn proceedings and re-introduce a third party expert who had been pivotal in recommending increased contact and a therapeutic programme for the children.
The Court of Appeal noted that the original contact order implementing these recommendations had not been adhered to by G. It accepted that the longer non adherence continued the more difficult it became to repair the breakdown in contact. It was suggested that W ought to have applied to the Court to enforce the original order but that, lacking legal advice as she was, she had not done so.
In this context the Court was critical of the Children’s Guardian for not having taken a more proactive role where both parties did not have the benefit of legal representation. It stated that the Guardian had a clear duty to take the initiative and seek directions from the Court when the contact order was not adhered to. In particular it was noted that the importance of restoring rather than abandoning relationships had been obvious.
The Guardians report primarily reflected on the children’s adamant assertion that they did not want to resume contact with W. Following this, the trial judge, had indeed relied upon the strongly stated views of the children, their well-being and development over the previous 18 months and the desirability of terminating litigation which had been more or less constant since 2003.
However, the Court of Appeal stated that whilst the children’s wishes were and remained a very important factor there was a danger in taking them too literally. It noted that their criticisms of W have no objective foundations in that she had always been a warm and loving parent who had never failed them. It highlighted that even the guardian, during a period of observing without being observed, had noted the warmth of the interaction between the children and W which froze as soon as he made himself known.
With this in mind the Court also noted that there was no doubt that the girls were well aware of their mother’s antipathy to W and to contact. The Court suggested that any consideration in similar situations ought to be alive to the potential manipulation of the children by one parent:
“A subtle but familiar strategy is for the primary carer to declare that it is for the children to decide, and they may go whenever they please, whilst at the same time projecting a clear message that she does not wish or expect them to go. In making any assessment the judge had to have regard to the assessment of all previously involved with the case, whether judges or social workers, that [G's] determined intention was to ultimately estrange [W] and her family from the children.”
The Court also concluded that insufficient attention had been paid to the crucial importance of the relationship between the children and W and the damage that would be caused to them by its loss. In the Court’s judgment it was wrong in this case to deprive the children, W and W’s family of family life unless there was manifestly no alternative.
Consequently the trial judge’s decision was overturned, the third party expert re-engaged and the matter remitted for re-trial.