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Zahra Pabani
Zahra Pabani
Partner - Family Law
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RESIDENCE: Re R (Residence Order)
Date:9 FEB 2010

(Court of Appeal; Thorpe and Arden LJJ; 9 February 2010)

The mother was the primary carer of the child following separation. Having contracted swine flu, the mother was temporarily unable to care for the child so the father became the main carer. The father obtained a residence order on basis that child would remain with him during the school week. The mother applied to have the order set aside as a litigant in person and the judge explained the meaning of joint parental responsibility to her. The mother appealed on basis that judge had misunderstood her litigation position. The mother also made an application for variation on basis that she had moved closer to the father's home.

The appeal was dismissed. Although the judge had been in error in explaining parental responsibility rather than residence, he had considered all relevant factors and the order was not inappropriate. Further, where a variation application was pending, there was no sense in substituting an interim order. The move represented a material change in mother's circumstances within CPR 52.3(1)(9). If the court had been informed of new application it might have made new directions and the appeal might therefore have had costs consequences.