|Lord Justice Thorpe|
"The outcome of this appeal ... depends largely on the lamentable history of conflict between the appellant and the respondent both in their relationship and in the ensuing litigation." So begins Lord Justice Thorpe in his leading judgment. That litigation includes two previous hearings in the Court of Appeal and one in the House of Lords: see CG v CW & Anor (Children)  EWCA Civ 372 and Re G  UKHL 43.
The case involves a lesbian couple, CG and CW, who had two children (born to CG) by donor insemination: A, a girl born on the 2nd February 1999 and B, a girl born on the 25th June 2001. The relationship broke down in 2003 and CW commenced proceedings seeking shared residence and contact. Without going into the details of the subsequent litigation, a shared residence order was made and CW was to have contact. However, the arrangement broke down and CG sought to terminate contact. In December 2008 CW issued an application for residence and contact. The application was eventually heard in April this year, when the judge rejected CW's application, made a sole residence order in favour of CG, thereby depriving CW of parental responsibility, and made no specific order as to contact, thereby effectively terminating contact. CW appealed.
Lord Justice Thorpe set aside the variation of the shared residence order on the basis of procedural unfairness alone: there was no application for variation, CG had indicated in a statement that not only did she not seek a variation, she sought only the continuation of the status quo, the idea of a variation had only been raised three days before the trial by the guardian, and neither the guardian nor the judge seemed to consider CW's need for advice and protection as a litigant in person. "It is safe to assume," said Lord Justice Thorpe, "that, had she been represented, her counsel would have opposed the variation not only on grounds of substance but also on grounds of procedural unfairness." (He stated that, in cases where the parties are unrepresented, the children's guardian, as the only party with the benefit of legal advice and representation, "must also be vigilant to avoid procedural or other unfairness to one or other of the unrepresented parties.")
As to contact, the judge relied upon the strongly stated views of the children. However, Lord Justice Thorpe stated (at paragraph 47 - my italics):
"Whilst the children's wishes were and remain a very important factor there is a danger in taking them too literally. First, their criticisms of CW have no objective foundations. She has always been a warm and loving parent who has never failed these children. Second, there is a clear mismatch between what the children say and how they behave. The guardian himself, observing without being observed, noted the warmth of the interaction between the children and CW which froze as soon as he made himself known ... Third, there is no doubt that the girls are well aware of their mother's antipathy to CW and to contact. 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 CG's determined intention was to ultimately estrange CW and her family from the children."He concluded that the judge had reached the wrong decision - the exercise of his discretion in accepting the guardian's recommendation to terminate litigation without any enforceable contact order was flawed because it was premature.
Accordingly, Lord Justice Thorpe allowed the appeal and remitted the application for retrial.
Lord Justice Lloyd and Lady Justice Black gave consenting judgments.