Birth parents – Children’s rights – Residence orders

Re B (a child): SC (Lord Hope (Deputy President), Lady Hale, Lord Collins, Lord Kerr, Lord Clarke): 19 November 2009

The appellant maternal grandmother (G) appealed against a decision ([2009] EWCA Civ 545, [2009] 2 FLR 632) upholding the transfer of a residence order to the respondent father (F).

G’s grandson (B) was four years old and had lived with her since his birth. He had staying contact with F each weekend. A magistrates’ court had made a residence order in G’s favour, but F appealed. The circuit judge relied on the decision of the House of Lords in Re G (children) (residence: same sex partner), [2006) UKHL 43, [2006] 1 WLR 2305 to state that, in the ordinary way, rearing of a child by his biological parents could be expected to be in the child’s best interests. He also commented that although G’s care would be better, F’s care would be ‘good enough’. The circuit judge therefore transferred residence to F, but the order was stayed pending an appeal to the Court of Appeal. The Court of Appeal upheld the circuit judge’s decision, but a further stay on the transfer of residence was granted to allow G to petition the Supreme Court for permission to appeal. As a condition of the stay, F’s staying contact was increased and B stayed with him from Thursday to Monday each week.

Held: (1) The reference made to Re G (children) by the circuit judge was not a proper representation of that decision, and his statement that it was the right of the child to be brought up in the home of his natural parent betrayed a failure to concentrate on the factor of paramount importance, which was, of course, the welfare of the child. To talk in terms of a child’s rights, as opposed to his best interests, diverted from the focus that the child’s welfare should occupy in the minds of decision-makers. It showed that the judge had allowed the question of the child’s so-called right to be raised by his biological parent to define the outcome of the residence debate. Further, there was no place for the question whether the proposed care by F would be ‘good enough’. The court’s quest was to determine what was in the best interests of the child, not what might constitute a second-best but ­supposedly adequate alternative.

(2) The comment by Lord Nicholls in Re G (children) about the rearing of a child by a biological parent was firmly set in the context of the child’s welfare and did no more than reflect common experience that, in the ordinary way, children tended to thrive when brought up by parents to whom they had been born. However, many disputes about residence and contact did not follow the ordinary way. All consideration of the importance of parenthood in private law disputes about residence had to be firmly rooted in an examination of what was in the child’s best interests. That was the paramount consideration. It was only as a contributor to the child’s welfare that parenthood assumed any significance. In common with all other factors bearing on what was in the best interests of the child, it had to be examined for its potential to fulfil that aim, Re G (children) explained. The justices had recognised that B’s welfare was the paramount consideration and the circuit judge had erred in reversing their findings. The Court of Appeal had also erred in accepting that the justices’ decision was plainly wrong.

(3) B had lived virtually all of his young life with G and had naturally formed a strong bond with her. There was reason to apprehend that if the bond were broken his current stability would be threatened. While F was assessed as capable of meeting B’s needs, those arrangements remained untested at the time of the justices’ decision, and there was ample material upon which the justices could reach the decision that they had. F lived some 30 miles from G, and the transfer of B’s residence would involve a great deal more than a change of address. The justices had been correct to give significant weight to the desirability of maintaining the status quo, although that factor would not always command the importance that was to be attached to it in the instant case.

(4) It was regrettable that such a radical change to B’s residence and contact arrangements had been made by the Court of Appeal. As a general rule conditions such as those imposed in the instant case should not be made where a party sought permission to appeal, not least because they might be seen as an unwarranted ­disincentive to the pursuit of what proved, in B’s case, to be a fully ­merited application.

Appeal allowed.

Alison Ball QC, Peter Horrocks (instructed by Powleys) for the appellant; Pamela Scriven QC, Cherie Parnell (instructed by Allan Rutherford) for the first respondent father; in person for the second respondent mother.