Re G (Children) (Residence: Same-sex Partner)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Laws,Lady Justice Hallett |
| Judgment Date | 06 April 2006 |
| Neutral Citation | [2006] EWCA Civ 372 |
| Docket Number | Case No: B4/2006/0340TF03P03242 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 April 2006 |
[2006] EWCA Civ 372
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MRS JUSTICE BRACEWELL DBE
HIGH COURT OF JUSTICE FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Laws
Lady Justice Hallett Dbe
Case No: B4/2006/0340TF03P03242
Mr P Jackson QC (instructed by Family Law in Partnership as agents for Messrs Preston Goldburn) for the Appellant
Mr S Cobb QC (instructed by Messrs Bindman & Partners) for the 1 st Respondent
Miss T Cook (instructed by Messrs John Boyle & Co) for the 2 nd Respondent
The Background.
The parties to this appeal are CG, CW and their children, A and B represented by their guardian Mr M.
By way of short introduction CG and CW cohabited in a lesbian relationship from 1995 until 2002. They wanted a family. A was conceived by CG as a result of anonymous donor insemination and born on the 2 nd February 1999. Sperm was reserved by the clinic to enable the couple to have a second child. B was born on the 26 th June 2001 and A and B are full sisters.
In 2002 their relationship broke down and CG initially moved with the children to an adjoining property. That arrangement terminated when CG found a new lesbian partner who lived in Leicester. She moved with the two children to share her new partner's home. That relationship endures and the couple have registered their civil partnership.
CW has also found a new partner and they are contemplating the registration of their civil partnership.
To complete the family story CW has a seventeen year-old son, C. There is a close bond between C and the two young girls.
More detailed account of the background is unnecessary since this case was the subject of a prior judgment of the Court of Appeal given on 6 th April 2005 and reported at [2006] 1 FCR 436. The appeal was brought by CW against the judgment of Her Honour Judge Hughes given in the Telford County Court in November 2004. The judge had refused CW's application for a shared residence order, and with it parental responsibility, but had imposed a condition preventing CG from relocating to Cornwall. Although this court did not interfere with the practical arrangements ordained by Judge Hughes, CW's appeal was allowed, fortifying her legal status in relation to A and B. The history, and the situation as it was last April, is sufficiently recorded in my previous judgment. Accordingly I now focus on the events of the last eleven months.
CG is recorded as having dismissed the order of this court as "an appalling decision made in an afternoon".
On the 6 th May her solicitors wrote to CW's solicitors asking for consent for the move to Cornwall. The request was inevitably refused. The relative proximity of the children supported the shared residence order and the underlying arrangements.
Nevertheless in May CG and her partner put the Leicester house on the market. On the 11 th of May CG registered A and B at school in Cornwall. She and her partner took steps to buy an alternative property in the vicinity.
A and B had their summer holiday with CW between 14 th and 28 th August. During that fortnight CG and her partner completed the sale of the house in Leicester and the purchase of a house in Cornwall. That was achieved by the 19 th August and enabled their removal on the 20 th. This, of course, was a flagrant breach of the court's control of the arrangements for the children and an elaborate deception of CW. I infer that it was also a deception of CG's solicitors, for on the 18 th August they wrote to announce that their client would be issuing an application for permission to relocate to Cornwall. They added "it will be our intention to issue proceedings at the Leicester County Court as the children are now residing in this area and will therefore be more readily available for meeting with a local CAFCASS officer."
In order to maintain the deception CG returned to Leicester on the 28 th August in order to receive A and B at the regular handover point in Leicester. A and B were then driven through the night to Cornwall. The deception only emerged when CW discovered that the girls had not attended at the Leicester school on 31 st August, the first day of the Michaelmas term. An immediate query to CG's solicitors was promptly answered "she has moved from the Leicester area to Cornwall …our client acknowledges that her actions place her in contravention of Order of the court but instructs us that the situation in Leicester was becoming unbearable and therefore impacting on the children. She was forced to make the decision that she did but did it in the interests of the children."
This apologia is hardly plausible. At the subsequent trial in the Family Division before Bracewell J, whose judgment we now review, the children's guardian made this telling appraisal: -
"Can I just say that I am obviously concerned that somebody should disobey the court order, but from a child care perspective whether that order existed or not, to move the children in that way, in secret, without them having the opportunity to say goodbye to their friends and their school friends, I think, to use the same word, was an appalling thing to do to them. It did not matter whether they were moving 50 miles away, never mind 250 miles away, to actually be uprooted without any planning, without any preparation, and suddenly taken overnight, which I did not appreciate actually happened until that emerged in evidence, that this was done as a farewell in the home of somebody else on that particular afternoon and then they were loaded into a car and driven down overnight to Cornwall, I can't imagine what impact that would have had on the children. They come back from CW's believing, "This is it. We are getting ourselves ready for school and we are going down to Woolworths to get our school uniforms", and all that sort of stuff, and all of a sudden you are spirited away in the middle of the night to somewhere, you know, 250 miles away where you don't know anybody. That to me, with the greatest respect to the court, the flouting of the order was bad, but the way in which it was achieved and the emotional impact it had on those children, was a terrible thing to do to them."
The Proceedings Below.
CW still did not know where the girls were to be found and on the 6 th September applied for orders under Section 33 of the Family Law Act 1986. Judge Hughes made the orders sought, proceedings were transferred to the High Court and A and B were joined as parties.
Two applications were then issued. On the 14 th September CG issued an application for the removal of the restriction imposed by Judge Hughes and for the reduction of CW's contact. On the 22 nd September CW issued an application for "a change in the arrangements of where the children are to reside under the current shared residence order…the applicant proposes that the shared residence order remain in place but the applicant becomes the children's primary carer."
Directions were given in the Family Division to culminate in a three day trial of the cross-applications commencing 8 th February 2006. These orders also regulated contact between CW and the girls in the interim.
I would observe that these applications played for high stakes. CG sought the validation of her conduct subsequently described by the guardian in a later passage of his evidence as "an incredibly stupid and damaging thing to do to those children." She also sought a reduction in CW's contact. There was no hint of a readiness to return to the Midlands for the sake of the children. On the other side CW did not seek a peremptory order for the return of the children to the Midlands: she sought to take over as primary carer.
The trial before Bracewell J was fought on those battle lines. Mr Stephen Cobb QC, who appeared for CW below, confirms that none of the parties sought the outcome that would have returned the children to the Midlands in the care of CG and her partner, MG. (The evidence before Bracewell J established that since the move to Cornwall CG had been the working partner and MG the home carer) .
Bracewell J heard evidence over three days, the four adults first and then the guardian. At the end of the second day she made a significant request for submissions on whether and how she might depart from the recommendation in the guardian's written report of 16 th January 2006, the essence of which was that there should be no change of residence and that contact should be reinstated to the level set by Judge Hughes.
If this was a straw in the wind, a clearer signal came from the guardian's oral evidence. He had been requested to listen carefully to the oral evidence and to reassess his written recommendation. At the outset of his examination in chief he was asked for his assessment of the oral evidence of CG and MG. This was his answer: -
"I found the evidence both from CG and MG quite disturbing. I think that M's evidence —- Was I wouldn't say hostile but not far from that, and a very unhelpful attitude of a blanket answer of "I can't remember". That did concern me as to the level of truthfulness. So far as the evidence of CG was concerned, again I had concerns about the avoidance of answering the questions which I think went beyond what would normally be expected of a lay person in a court such as this. What also concerned me was there was no expression of remorse or contrition for disobeying the orders of the court. It was almost a blanket answer of "I believe it was in the children's best...
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