G (Children), Re

A shared residence order is not precluded by parental conflict or an inability to work in harmony. The court must consider whether the order reflects the children’s family life, recognises the parents’ legal responsibilities and serves their welfare.

Where a significant non-biological parent faces marginalisation, parental responsibility may safeguard the children’s continuing family relationships. A judge departing from a CAFCASS recommendation must give clear and cogent reasons, particularly where the recommendation identifies a risk to an important parental relationship.

The appellant had lived with the respondent in a same-sex relationship from 1995 until 2003. They had two children, conceived by the respondent through anonymous donor insemination. The appellant sought a joint residence order, which would also confer parental responsibility under the Children Act 1989.

The Telford County Court refused joint residence but made a sole residence order in favour of the respondent, together with specific issue and contact orders. The judge had found that the respondent’s proposed move to Cornwall was partly intended to frustrate contact. The appellant appealed, arguing that the judge had inadequately explained her rejection of the CAFCASS recommendation and had failed to address the significance of parental responsibility and the risk of marginalisation.

1. Appeal allowed. Permission to appeal was granted and the Court of Appeal made the joint residence order refused below. Further orders were agreed between counsel, the appellant’s costs were subject to detailed assessment, and reporting restrictions remained in force.
2. A shared residence order is not inappropriate merely because the parents are in conflict or cannot work harmoniously. The court endorsed the guidance in A v A (Shared Residence) [2004] 1 FLR 1195 that such an order may reflect the children’s actual arrangements and the parents’ equal legal status, duties and responsibilities.
3. The judge was entitled to assess the parties differently from the CAFCASS officer, but was required to explain the rejection of the recommendation and its supporting warning fully and cogently. The prediction of future disputes depended principally on the parties’ relationship, rather than on the form of order itself.
4. For this non-biological same-sex parent, section 12(2) of the Children Act 1989 provided the route to parental responsibility through a residence order. The court treated parental responsibility as capable of preserving a substantial and continuing role in the children’s lives.
5. The judge had found that the proposed relocation was partly designed to frustrate contact and that the appellant risked being marginalised. The children therefore required firm measures to preserve an important part of their family life, including their relationship with the appellant’s son. The joint residence order was the appropriate safeguard identified by the CAFCASS officer.

• Court of Appeal (Civil Division): On 6 April 2005, allowed the appeal from the Telford County Court and granted a joint residence order.
• Telford County Court: Refused the appellant’s application for joint residence, made a sole residence order in favour of the respondent, and made specific issue and contact orders.