(Article courtesy of http://business.timesonline.co.uk/tol/business/law/reports/)

Supreme Court

Published November 23, 2009

In re B (a Child) (Residence order)

Before Lord Hope of Craighead, Baroness Hale of Richmond, Lord Collins of Mapesbury, Lord Kerr of Tonaghmore and Lord Clarke of Stone-cum-Ebony

Judgment November 19, 2009

When considering an application for a residence order for a child there was no presumption in favour of a biological parent. The advantage of being brought up by a parent only assumed significance as part of an examination of what was in the child’s best interests.

The Supreme Court so held in giving reasons for having allowed an appeal by GB, the maternal grandmother of B, a child aged four, from an order of the Court of Appeal (Lord Justice Wall and Lord Justice Elias) ([2009] EWCA Civ 545) upholding the decision of Judge Richards, sitting as a Family Division judge, to reverse a family proceedings court’s decision to refuse an application by B’s father, under section 8 of the Children Act 1989, that B should live with himself and his new family rather than with GB, who had cared for him since his birth. Neither of B’s parents had been able to care for him satisfactorily in the first years of his life.

The justices in the family proceedings court had asserted that In re G (Children) (Residence: Same-sex partner) (The Times July 27, 2006; [2006] 1 WLR 2305) stated that a child should not be removed from the primary care of biological parents but distinguished it as B had never resided with his father. They found that there were no compelling reasons to disrupt the child’s continuity of care.

On the father’s appeal, the judge, having referred to dicta of Lord Nicholls of Birkenhead in In re G (at paragraph 2) that in the ordinary way the rearing of a child by his or her biological parent could be expected to be in the child’s best interests, stated that it was the right of the child to be brought up in the home of his or her biological parent.

The judge had then ruled that since the father could meet B’s needs to a settled home with his own family, the justices’ decision that the child should remain with his grandmother was plainly wrong.

Ms Alison Ball, QC and Mr Peter Horrocks for the grandmother; Ms Pamela Scriven, QC and Ms Cherie Parnell for the father; B’s mother in person.

LORD KERR, delivering the judgment of the court, said that the significance of parenthood in private law disputes about residence and contact had exercised many courts over many years.

One might have thought that the final word on the subject had been uttered in the comprehensive and authoritative opinion of Lady Hale in In re G.

But as the present case illustrated, misunderstandings about the true import of that decision persisted. There had been a failure on the part of the judge to concentrate on the factor of paramount importance: 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 those called on to make decisions as to residence.

Although Lord Nicholls had said, in In re G that “a child should not be removed from the primary care of his or her biological parents without compelling reason”, he had not propounded any general rule to that effect.

Lord Nicholls’ comment about the rearing of a child by a biological parent was set firmly in the context of the child’s welfare. That had to be the dominant and overriding factor that ultimately determined disputes about residence and contact. There could be no dilution of its importance by reference to extraneous matters.

When Lord Nicholls said that the interests of a child would normally be best served by being reared by his or her biological parent, he was doing no more than reflecting common experience that, in general, children tend to thrive when brought up by parents to whom they had been born.

But he was careful to qualify his statement by the words “in the ordinary way”. Many disputes about residence and contact did not follow the ordinary way.

The central point of In re G was that set out by Lady Hale (at paragraph 30). It was that 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.

The justices’ decision could not be characterised as plainly wrong. Although they had misapprehended the real import of In re G, that did not detract from their careful evaluation of the evidence and their weighing of the various competing factors involved in determining B’s residence.

The Court of Appeal had recognised some of the deficiencies in the judge’s analysis, in particular his pronouncement of something which came close to a presumption that a child should live with his biological parents.

But it had considered that it could overlook those shortcomings because the judge’s fundamental approach was, in its opinion, not plainly wrong.

That in turn depended on their acceptance of the judge’s conclusion that the justices’ decision was plainly wrong. Since it was not, the basis on which the Court of Appeal felt able to uphold the judge’s decision fell away.