Case No: B4/2012/1063  
Neutral Citation Number: [2012] EWCA Civ 1434
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT
HIS HONOUR JUDGE VINCENT
FD08PO2726
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/11/2012

Before :

LORD JUSTICE THORPE
LORD JUSTICE LLOYD
and
LADY JUSTICE BLACK
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Between:

	G (children)		

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Stephen Cobb QC (instructed by Penningtons Solicitors LLP) for the Appellant
Joy Brereton and Michael Gration (instructed by Bar Pro Bono Unit) for the 1st respondent 
Tina Cook QC (instructed by John Boyle & Co Solicitors) for the 2nd Respondents

Hearing date: Thursday 4 October 2012
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Judgment
Lord Justice Thorpe: 
Introduction
1.	The outcome of this appeal, for which My Lady granted permission on the 19th July 2012, depends largely on the lamentable history of conflict between the appellant and the respondent both in their relationship and in the ensuing litigation. The case has been to this court twice before and once to the House of Lords: see Re G [2006] EWCA Civ 372, Re G [2006] UKHL 43. The present appeal is from the judgment of His Honour Judge Vincent sitting in the Truro County Court on the 19th April 2012.
2.	Accordingly, before approaching the submissions of the parties to the appeal or the terms of the judgment below, I will endeavour to summarise the most salient points within the chronology.
History
3.	The relationship between CW, the appellant, and CG, 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 the first respondent (hereinafter “CG”) gave birth to two daughters following insemination with sperm from an anonymous donor. A was born on the 2nd February 1999 and B on the 25th June 2001. The appellant (hereinafter “CW”) commenced proceedings on the 10th September 2003 seeking shared residence and contact.
4.	Following various listings, on the 22nd November 2004 Her Honour Judge Hughes granted sole residence to CG but with specific issue orders designed to incorporate CW centrally in the lives of the children. There was also an order for CW to have generous contact. At that stage the CAFCASS officer recorded that CG did not wish CW to be involved in the lives of the children. She did not recognise CW as a parental figure who should play a part in their lives.
5.	CW successfully appealed to this Court with the result that a shared residence order replaced the sole residence order made below. That variation was made by order of 6th April 2005. 
6.	CG’s reaction was to seek CW’s consent to move the children to Cornwall. When that was not forthcoming she removed them unilaterally and abruptly in a manner of which Mr Martin, the CAFCASS officer, subsequently said,  “the way in which it was achieved and the emotional impact it had on those children, was a terrible thing to do to them”.
7.	Inevitably this wrongful act led to a flurry of applications and orders leading to a final hearing before Bracewell J on the 15th February 2006. Bracewell J was so critical of CG’s conduct that she moved the children’s primary home to CW, although continuing the shared residence order. Amongst the findings of Bracewell J is this :-
“I find that the actions of CG and M were such as to flout court orders; to deceive both the court and CW and to frustrate contact.”
8.	CG’s appeal to this court was dismissed on the 6th April 2006. However, her further appeal to the House of Lords succeeded on the 26th July 2006 when primary care was returned to CG. I cite two passages from the speech of Baroness Hale of Richmond. In paragraph 43 she recorded:-
“In this particular case, the mother had behaved very badly. She together with MG had deliberately disobeyed the court’s order. This had required considerable planning and the deception of her own solicitor. More importantly, it had been a terrible thing to do to the children. Its aim had been to frustrate the contact arrangements ordered by the court.”
		Then in paragraph 45:-
“I am very conscious, as was Dr. Sturge, the child psychiatrist who gave evidence in the case of Re D, of the vulnerability of someone in CW’s position. Her importance in these children’s lives has been stressed by both professionals and all the judges who have decided this case. The mother should now be in no doubt about that or about the possible consequences should she not adhere to the arrangements which we have ordered.”
9.	Although CG had regained her primary role it was on the premise that she was abiding by the orders of the court for contact and would continue to do so in the future.
10.	Although between the summer of 2006 and the end of 2008 she was largely compliant, a tendency to vary the court’s order unilaterally and without reference to the court crept in. For example, in November 2007 she refused to take the children to the half way point ordered by the court and declared that contact could only take place if CW undertook the whole journeys of collection and return. Earlier CG had proposed that CW’s contact should not be at her home in Shropshire but should be restricted to Cornwall.
11.	These developments did not bode well and were perhaps the prelude to an unpleasant scene on the 29th October 2008 when only the older child was                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                willing to leave her mother at the handover point. Thereafter CG sought to terminate contact and on the 22nd December 2008 CW issued an application for residence and contact. This was the application before His Honour Judge Vincent on the 19th April 2012, some 3 years and 4 months later.
12.	This was a very difficult case with a long history and it required a level of professional expertise for its management and determination. At the first appointment at the PRFD a rule 9.5 guardian (the guardian being appointed under the Family Proceedings 1998, now rule 16.4 Family Procedure Rules 2010)  was appointed, Mr Martin, and permission was given for the instruction of Dr Asen to report by 21st April 2009. Unfortunately, in my judgment, the application was transferred to the Bristol County Court. We were told that by this stage CW had spent some £200,000 on the litigation over the years. She was not eligible for public funding and thereafter acted in person. CG was for a time publicly funded but then she too commenced to act in person.
13.	Unfortunately Mr Martin left the case in April 2009 on his retirement. His swan song was a brief report which concluded :-
“10. As an agency CAFCASS and myself as part of the agency, have tried everything within our powers to facilitate contact.
11. Unfortunately, however this position has been reached, the girls do not view CW as part of “their” family and therefore do not see contact as valid or worthwhile.
12. I look forward to Dr Asen’s opinion as to how we can advance contact. CAFCASS and myself remain committed to helping this family in whatever way we can.”
14.	On the 23rd April 2009 Dr Asen filed his report recommending the immediate resumption of contact and a therapeutic programme. He offered to do the work himself and to travel to Bristol for the purpose. He proposed to undertake the work in May and June 2009 with an addendum report for the court. In the course of his assessment Dr Asen naturally discussed with CG where she stood on contact. In effect she said it was up to the children. When pressed by Dr Asen, she “continued to reply that it was up to the children to say whether or not they wanted to have contact”. In contrast he found that CW had a positive and flexible attitude towards contact whichever parent was the primary carer. Dr Asen’s addendum was filed on the 16th July 2009. He reported on the outcome of the meetings he had arranged concluding:-
“I am guardedly optimistic that progress has been made and can be sustained, but I am also aware that things have broken down in the past – more than once.”
15.	His principal recommendation was in these terms:-
“Provided that contact between A and B and their non-resident parents continues in the way it has been agreed by the parties and provided it remains positive, it is my professional opinion that the children should continue to reside with Ms C and M. However in the event that contact arrangements break down again, it is my view that serious consideration would need to be given to change both children’s residence, as it would be evidence that CG and M were unable or unwilling to facilitate consistent and good contact for the children with their other set of parents.”
16.	The seeds of success led to consensual adjournments of the pending application for the purpose of further therapy on the 4th September 2009, 3rd November 2009, 4th February 2010 and 3rd September 2010.
17.	This pattern continued in an important order of the 13th October 2010. The second recital records Dr Asen’s recommendation that the case should be adjourned again for 12 months. Accordingly, paragraph one listed the application for review on the first open date after 1st October 2011. Paragraph two provided for Dr Asen to report on the outcome of further therapy by 1st September 2011. Paragraph four provided for the guardian’s report by 29th September 2011. The guardian was now Mr Barr who had been appointed in August 2010. Paragraph five then provided a detailed and comprehensive contact regime to run from 23rd October 2010 to 4th September 2011.
18.	Tragically for the children only the first period of five days contact in October was achieved. The regime broke down on the second occasion of contact between 26th and 28th November 2010.
19.	Had CW been represented I have no doubt at all that this sad development would have been referred to the judge. Instead CW seems to have referred the breakdown to the guardian and to Dr Asen. In the statement filed by CW for the hearing on the 19th April 2012 she explained:-
“62. On 10th January 2012 Mr Peter Barr, the Children’s Guardian placed a letter before HHJ Vincent. It is true that Peter Barr visited my home in Shropshire in September 2010. However the point that I make in my evidence placed before you on the 10th January 2012 was that when contact broke down on 25th November 2011 I was unable to contact the guardian and you will see the emails that I sent him and the only response I received on 30th November 2011. From the Guardian’s letter and from what I heard in evidence on the 10th January 2012 it appears that the Guardian had not had contact with either A and B or CG or myself since September 2010. In fact the only communication regarding this case since September 2010 appears to be an email to Dr Asen, dated 29th May 2011. In my evidence in court you will see that I emailed Dr Asen after a conversation with Melanie Davey (John Boyle Solicitors), as I was confused as to the role of the Guardian. I had understood that part of the Guardian’s remit was to help in facilitating contact in the way in which Clive Martin acted, however Melanie Davey explained to me that there were no specific instructions for the Guardian and it was not the role to actively facilitate contact on my behalf. ”
20.	In evaluating Mr Barr’s actions and inactions at this crucial stage it must be remembered that he did not have the long experience and the profound engagement that characterised Mr Martin’s work as the children’s guardian. He had only been appointed in August 2010. He had seen the children on 31st August at their home and on the 25th September 2010 at a contact session in Truro. He had visited CG on the 25th August 2010 and CW on the 12th September 2010. He had had a telephone conversation with Dr Asen on the 20th August 2010 before any of these meetings. It is unclear to what extent he had read into the history of the litigation and the findings and conclusions set out in the judgments of the several courts engaged.
21.	As well as communications at the end of 2010 and throughout 2011 already in the appeal bundles, we were handed a further correspondence bundle during the course of the hearing. I do not intend to summarise but only to note that there were communications throughout this period between CW and the Guardian, CW and the guardian’s solicitor, CW and Dr Asen, and CW and the Truro Court. The guardian’s solicitor also wrote to the Truro Court on the 11th November requesting that Mr Barr be discharged from his appointment as the children’s guardian. Significant too is the exchange between CW and Dr Asen which resulted in his letter of the 13th December in which he confirmed:-
“I am still committed to undertake such work with yourself and CG – and for the respective partners/children to join if or when appropriate.”
22.	The letter from CW to the Truro Court in response to Mr Barr’s application to be discharged must have alerted the judge to the fact that this complex and important case had run right off the rails. The judge’s response was an order of the 23rd November transferring the case from Bristol to Truro. By order in the Truro County Court of even date he set a directions hearing on the 8th December with a fifteen minute time estimate. That was subsequently vacated and re-fixed for the 10th January 2012. On the 10th January he heard the parties in person and the solicitor for the guardian. He ordered one statement from each party by 24th January, a position statement from the guardian by 7th February and a one day hearing on the first open date after the 9th February with the children to attend to see the judge at 9.30 on the morning of the hearing. In the event, the first open date proved to be the 19th April.
23.	All that is the salient chronology.
The Trial
24.	Of considerable significance is the report dated the 16th April 2012 filed by Mr Barr pursuant to the judge’s directions of 10th January. Whilst the direction required filing by 7th February it was not filed until three days before the hearing. It was undoubtedly favourable to CG’s cause. Not only did Mr Barr recommend that there should be no specific order with regard to contact but he also recommended that the shared residence order, upon which rested CW’s parental responsibility, be replaced with a sole residence order in favour of CG. Given the impact that the report was likely to have on the outcome it was unfortunate that it was not available to CW as a litigant in person until such a late stage.
25.	Furthermore, in weighing his recommendations regard must be paid to the slender nature of Mr Barr’s involvement, emphasised by his application to be discharged from the case in November 2011. However, the influence of the report on the outcome is easily demonstrated: the judge accepted all Mr Barr’s recommendations.
26.	 Mr Barr drew his conclusions from his meetings with the girls. In addition to the two meetings which I have recorded above he had seen them at home on the 12th April 2012 when he had gauged their adamant opposition to a resumption of contact with CW and her family as well as forming a firm impression of their well being and maturity.
27.	Mr Barr’s assessment was independently endorsed by the judge who met them in his room as planned and received the notes which each girl had written in preparation for the meeting. 
28.	So in accepting Mr Barr’s recommendation that there should be no specific contact order the judge relied heavily upon the girls’ impressions of the past and their clearly expressed wishes and feelings for the future.
29.	He rejected CW’s application. Ultimately in her oral evidence she had applied only for the adjournment of her application and the re-involvement of Dr Asen to enable him to explore the re-instatement of a contact relationship.
Submissions
30.	CW’s appeal was argued most skilfully and forcefully by Mr Stephen Cobb QC. He argued that the judge had erred in substituting a sole residence order in CG’s favour for the shared residence order, thereby depriving CW of parental responsibility for the children and that he was wrong not to pursue direct contact further. Miss Brereton was robust and clear in her submissions supporting the judge. Miss Brereton emphasised that her client sought first and foremost to protect CG and the children from the re-instatement of a direct contact regime with CW.
31.	Miss Cook QC for the guardian had in her skeleton indicated that Mr Barr’s recommendation for a variation of the shared residence order had been tentative and not fundamental. Miss Cook faced a difficult task in defending the guardian against Mr Cobb’s strong criticisms of what little he did and particularly of what he failed to do. 
Conclusion
32.	This case well illustrates the difficulties that courts presently face, and will more frequently face in the future, when the parties are unrepresented, particularly in a case as complex as the present. What is the duty of the rule 16.4 (formerly rule 9.5) guardian in such circumstances? There is no doubt that the burden on the judge to avoid legal misdirection and to ensure a fair outcome is magnified in such circumstances. At a minimum 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.
33.	The appeal requires consideration of two quite separate points: was the judge right to vary the shared residence order, thereby depriving CW of parental responsibility? Was the judge right to effectively terminate contact whilst making a general order that allowed for its revival?
34.	I will consider first the variation of the shared residence order. The judge’s reasons for so doing are superficially convincing. At paragraph 45 of his judgment he said:-
“I now come to the orders. Can a shared residence order continue against this background of uncertainty as to when, if at all, the children will next see CW? It is certainly no bar to a shared residence order that the times spent with respective parents are in duration terms starkly different, but to have such an order when one of the parties has no time at all with the children would, in my judgment, be a misuse of the order and a complete fiction. In my judgment such an order should not be left in place for the sole purpose of maintaining parental responsibility in CW. I make it clear that in my judgment I have no jurisdiction against these background facts to leave it in place.”
35.	Mr Cobb’s response to that is that the shared residence order was fully justified in a case where there had been ample periods in which the girls were living in both homes, albeit predominately in CG’s home. Furthermore, there was the clear prospect of future living in both homes as the judge recognised by making the general order for contact.
36.	It is unnecessary for me to express a view on the jurisprudence on shared residence orders as to which Miss Brereton offered her research of the authorities. I would set aside the variation on the basis of procedural unfairness alone. 
37.	First, there was no application for variation. Second, in the statement filed by CG pursuant to the judge’s direction, not only did she not seek or even moot a variation, she positively stated that she sought only the continuation of the status quo, which is to say the situation in which there had been no direct contact since November 2010 and no indirect contact since November 2011. Third, the notion of variation – and it was no more than a notion – came from the guardian. Fourth, it emerged only on the 16th April, three days before trial. Fifth, it is his notion as a social worker not endorsed by any legal submission. Finally, neither he nor the judge seemed to consider CW’s need for advice and protection as a litigant in person. It is safe to assume 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.
38.	The second question is more difficult and again the judge’s reasoning for accepting the guardian’s recommendation on CW’s issued application is clear and persuasive. Less persuasive to me is his rejection of CW’s modified application which was only for an adjournment to allow the reintroduction of Dr Asen. 
39.	Again, the judge quite rightly, relied upon the strongly stated views of the girls, 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.
40.	In reaching a conclusion on this finely balanced issue I have regard not only to the rival submissions of Mr Cobb and Miss Brereton but also to the chronology commencing with the breakdown of contact at the end of November 2010.
41.	The order of October 2010 created a common endeavour, the parties to which were the parents, the guardian, Dr Asen and the court. The duration of the joint endeavour was 12 months. If all went according to plan the parties would reassemble a year later to decide the future. If the joint endeavour did not run its intended course it was extremely important for the parties to decide swiftly the immediate future in the light of the unexpected development. The longer the delay the more difficult it would be to repair the breakdown. Absent agreement the court had to be re-engaged. CG had no incentive to return to court. CW who had every incentive failed to do so. In my judgment in the particular circumstances of this case, the guardian had a clear duty to take the initiative. He knew that CW had no advice or representation. He knew that she was appealing to him to act. Perhaps he did not know, but ought to have known from the history, that the maintenance of a relationship between the children and CW’s family had been declared both by the appellate courts and by Dr Asen to be of first importance. He also knew that Dr Asen was not a party, but an expert, whose continuing expertise was both crucial and available.
42.	It is not fanciful to speculate that had the guardian applied to the court for urgent directions in December 2010 there would have been options that were no longer there 16 months later. Had CW advanced her application as modified on the 19th April 2011, to the judge in December 2010 surely it would have succeeded. But was the delay such as to render it futile? The importance of restoring rather than abandoning relationships was obvious. The advice of Dr Asen was crucially required. Had CW been represented at the directions hearing in January 2012, surely the involvement of Dr Asen would have been canvassed. I do not understand why the guardian did not apply for a direction that would ensure that his advice would be available to the court at what was to be a final hearing.
43.	I emphasise that there can be no criticism of the court. As soon as the judge was made aware of the situation he acted decisively to bring about an early hearing. 
44.	However, I am also of the opinion that the ultimate exercise of his discretion in accepting the guardian’s recommendation to terminate litigation without any enforceable contact order was flawed if only because it was premature. However, I also wish to express my view on the broader submissions.
45.	Mr Cobb in the end distilled his submissions on the essential point of the appeal to the following four criticisms:-
i)	The judge too readily accepted failure.
ii)	The judge placed too great reliance on the children’s stated views.
iii)	The judge placed too great reliance on the assessment and recommendation of the guardian.
iv)	The judge had too little regard to the Article 8 rights of the children and those of CW and her family.
46.	Miss Brereton in her response emphasised how the children have thrived, particularly in the last 18 months. They were intelligent well adjusted children. A in particular, was entitled to expect the court’s support given the strength and clarity of her wishes and feelings.
47.	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. Likewise, Dr Asen in his observations had seen the same quality of natural warmth. 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.
48.	It is also my view that the judge did not sufficiently factor in the crucial importance of the relationship between the children and CW and her family and the damage that would be caused to them by its loss. This was made clear by Baroness Hale of Richmond in her speech and is equally made plain by Dr Asen in his written report in which he advises that if CG cannot sustain the relationship between the children and CW then consideration would have to be given to moving them to CW’s home.
49.	With all due respect to Judge Vincent, whose experience as a trial judge is of the highest order, I must conclude that on this occasion he reached the wrong decision. The order that he made was simply premature. Dr Asen is an internationally renowned expert leading services at one of the foremost centres of excellence in London. He had access to charitable funds; he was prepared to put himself to the trouble of working with the family in Bristol. He had had no opportunity to assess the breakdown or to advise on the prospects of reparation. He had declared himself ready to return to the challenges that the case presented. Judge Vincent should have given directions that would have secured his re-engagement before any final decision was taken about contact
50.	I would therefore accede to Mr Cobb’s application. I would allow the appeal, set aside paragraph 1 of the judge’s order and remit the application for retrial by the liaison judge for the western circuit region, Baker J. I would give immediate direction for the re-engagement of Dr Asen. I would invite Baker J to find two to three days for a fixture at the earliest practical date. 
51.	Of course, the result of the retrial may simply be a repeat of the order made by Judge Vincent. However, it would in my judgment be wrong in this case to deprive the children, CW and CW’s family of family life unless there is manifestly no alternative.
52.	Both Mr Cobb for the appellant and Miss Brereton leading Mr Gration appeared before us pro bono. That in itself is an indication of the significance of the appeal. The parties could not have been better served had they each had access to treasure chests. I would like to express our great gratitude to all three counsel. 
Lord Justice Lloyd:
53.	I agree
Lady justice Black:
54.	I also agree.