G (Children)

In complex child-contact litigation, a court should not terminate contact or remove a shared residence order without ensuring procedural fairness, particularly where a party is unrepresented. The children’s guardian, as the only legally advised party, must be vigilant against procedural unfairness and take the initiative to re-engage the court when an agreed contact programme breaks down. Children’s wishes and feelings are important but require critical assessment. They should not be treated as determinative without regard to objective evidence, behaviour, possible influence by the primary carer, and the value of established family relationships. Where a specialist expert remains available and has not assessed the breakdown or prospects of repair, a final decision terminating litigation may be premature.

The appeal arose from long-running proceedings between CW and CG concerning two daughters born during their cohabitation. A shared residence order had previously been made, but contact arrangements repeatedly broke down. On 19 April 2012, His Honour Judge Vincent, sitting in Truro County Court, accepted the children’s guardian’s recommendations. He rejected CW’s application, made no specific contact order, and replaced shared residence with sole residence in CG’s favour, thereby removing CW’s parental responsibility. CW, acting in person, appealed. The central issues were whether the variation was procedurally fair and whether the contact litigation should have been brought to an end rather than adjourned for further work by Dr Asen. The earlier litigation had reached the Court of Appeal and the House of Lords in Re G [2006] EWCA Civ 372 and Re G [2006] UKHL 43.

Appeal allowed and remitted for retrial. Thorpe LJ gave the judgment, with Lloyd and Black LJJ agreeing.

1. The variation of the shared residence order was set aside on procedural unfairness alone. There had been no application for variation. CG had sought only continuation of the status quo, and the proposal came from the guardian only three days before trial. It was a social worker’s proposal, unsupported by legal submission, and CW had not received the advice or protection required as a litigant in person. The Court therefore did not need to determine the wider jurisprudence on shared residence orders.
2. Where an agreed contact regime breaks down unexpectedly, a children’s guardian who knows that an unrepresented parent is seeking assistance has a clear duty to take the initiative and seek urgent directions. Delay may remove options for repairing the relationship. The Court did not criticise the judge, who acted decisively once informed of the situation.
3. The children’s wishes were important, but there was a danger in taking them too literally. The court should consider their objective foundations, any mismatch between what the children say and how they behave, the possible influence of the primary carer, and the assessments of professionals and judges previously involved. The Court also emphasised the importance of the children’s relationship with CW and her family, relying on the earlier House of Lords decision in Re G [2006] UKHL 43.
4. The decision to terminate the litigation without an enforceable contact order was premature. Dr Asen had not assessed the breakdown or advised on the prospects of reparation, although he remained available and willing to assist. The Court set aside paragraph 1 of the order, remitted the application for retrial by Baker J, directed the immediate re-engagement of Dr Asen, and invited an early two- to three-day fixture.

1. Court of Appeal (Civil Division): The present appeal was allowed. Paragraph 1 of the county court order was set aside and the application was remitted for retrial.
2. Truro County Court: On 19 April 2012, His Honour Judge Vincent rejected CW’s application, made no specific contact order, and replaced the shared residence order with sole residence in CG’s favour.
3. Court of Appeal (Civil Division): In the earlier appeal, Re G [2006] EWCA Civ 372, CG’s appeal was dismissed.
4. House of Lords: In the further appeal, Re G [2006] UKHL 43, the appeal succeeded and primary care was returned to CG.