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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (A Child), Re [2009] EWCA Civ 545 (11 June 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/545.html Cite as: [2009] Fam Law 812, [2009] 2 FLR 632, [2009] EWCA Civ 545 |
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COURT OF APPEAL (CIVIL
DIVISION)
ON APPEAL FROM
His Honour Judge Richards sitting as a judge of the High Court
in Norwich on 3 April 2009
Strand, London, WC2A 2LL |
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B
e f o r e :
LORD JUSTICE ELIAS
____________________
GB |
Appellant |
|
- and - |
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RJB and GLB |
1st Respondent 2nd Respondent |
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B (A ![]() |
____________________
by
Powleys - Solicitors) for the Appellant
Cherie Parnell (instructed by
Allan Rutherford Ltd - Solicitors) for the 1st Respondent
GLB appeared in person and represented herself
Hearing date: 21st May 2009
____________________
Crown Copyright ©
Lord Justice Wall:
Introduction
The appeal
Section 55(1) of the Access to Justice Act 1999 (the 1999 Act)
(1) Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal maybe
made to the Court of Appeal from that decision unless the Court of Appeal considers that
(a) the appeal would raise an important point of principle or practice, or
(b) there is some other compelling reason for the Court of Appeal to hear it.
Permission to appeal may onlybe
given where
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal shouldbe
heard.
The essential facts
The justices' reasons; did they make any error of law?
Obvious difficulty is parents' capacity tobalance
the competing needs in a situation that is new to all. That is untested. I have no reason to think (father and his new wife) could not manage it, it is part of the equation for me.
It has a lot to do with competition, rivalry and jealousy. With their ages not such a major issue presently,but
it may arise later. Sometimes it works really well for the
children
![]()
but
we need all adults to work together.
(14) Re G (Residence: Same Sex Partner) [2005]EWCA
![]()
Civ
462 [2005] 2 FLR states a
child
should not
be
removed from primary care of
biological
parents. H has never resided with his father. Grandmother has
been
his psychological parent as mentioned in Re G.
(17) We have not found compelling reasons to disrupt H's continuity of care and the consistency and predicatability that accompanies it.
The law: Re G [2006] UKHL 43 (Re G)
[2] I wish to emphasise one point. In this case the dispute is notbetween
two
biological
parents. The present unhappy dispute is
between
the
children's
mother and her former partner Ms CW. In this case, as in all cases concerning the upbringing of
children,
the court seeks to identify the course which is in the
best
interests of the
children.
Their welfare is the court's paramount consideration. In reaching its decision the court should always have in mind that in the ordinary way the rearing of a
child
![]()
by
his or her
biological
parent can
be
expected to
be
in the
child's
![]()
best
interests,
both
in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A
child
should not
be
removed from the primary care of his or her
biological
parents without compelling reason. Where such a reason exists the judge should spell this out explicitly.
[3] I would simply say that in my opinionboth
![]()
Bracewell
J and, in the Court of Appeal, Thorpe LJ failed to give the gestational,
biological
and psychological relationship
between
CG (the
birth
mother) and the girls the weight that that relationship deserved. Mothers are special and, even after account is taken of CG's
breach
of the "residence" order (the justification for which I, for my part, doubt) and her reprehensible attitude towards the important relationship
between
the girls and CW, their other parent, CG was, on the evidence, a good and loving mother. I find myself unable to accept that the circumstances of this case came even close to justifying the judge's and the Court of Appeal's conclusion that the welfare of the girls required their primary home to
be
changed from that of their mother to that of CW.
[7] There are two issues of principle. The first is the weight tobe
attached to the fact that one party is
both
the natural and legal parent of the
child
and the other is not. This will require us to explore the concept of "natural" parenthood and its significance
both
for the adults and for the
child.
The second is the approach to
be
adopted
by
the court where the party with whom the
child
has her principal home is reluctant to acknowledge the importance of the other party in the
child's
life.
I am very concerned at the prospect of removing thesechildren
from the primary care of their only identifiable
biological
parent who has
been
their primary carer for most of their young lives and in whose care they appear to
be
happy and thriving. She is
both
a
biological
parent and a 'psychological' parent. Mindful as I am of the changing social and legal climate, on the facts of this case, I would attach greater significance perhaps than some to the
biological
link
between
the appellant and her
children.
![]()
It is this point which Mr Peter Jackson QC has put at the forefront of his submissions onbehalf
of the mother. He argues that, whatever the test to
be
adopted, it was wrong for the courts
below
to attach no significance whatever to the fact that CG is the
child's
mother. He also argues that the judge allowed herself to
be
distracted,
by
her disapproval of the mother and her
behaviour,
from a full consideration of the evidence relating to the
children's
welfare, which would have led her to a different conclusion.
[30] We conclude, therefore, that the welfare of eachchild
in the family should continue to
be
the paramount consideration whenever their custody or upbringing is in question
between
private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their
child,
in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may
bring.
We have already said that the indications are that the priority given to the welfare of the
child
needs to
be
strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to
children
under the present law.'
[30] Nor should we. The statutory position is plain: the welfare of thechild
is the paramount consideration. As Lord MacDermott explained, this means that it "rules upon or determines the course to
be
followed". There is no question of a parental right. As the Law Commission explained, "the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their
child"
or, as Lord MacDermott put it, the claims and wishes of parents "can
be
capable of ministering to the total welfare of the
child
in a special way".
[31] None of this means that the fact of parentage is irrelevant. The position in English law is akin to that in Australian law, as explainedby
Lindenburgh J in Hodak, Newman and Hodak (1993) FLC 92-421, and subsequently approved
by
the Full Court of the Family Court of Australia in Rice v Miller (1993) FLC 92-415 and Re Evelyn [1998] Fam CA 55:
I am of the opinion that the fact of parenthood is tobe
regarded as an important and significant factor in considering which proposals
better
advance the welfare of the
child.
Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process Each case should
be
determined upon an examination of its own merits and of the individuals there involved." (emphasis added).
[44] My Lords, I am driven to the conclusion that the courtsbelow
have allowed the unusual context of this case to distract them from principles which are of universal application. First, the fact that CG is the natural mother of these
children
in every sense of that term, while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will
be
![]()
best
for them now and in the future. Yet nowhere is that factor explored in the judgment
below.
Secondly, while it may well
be
in the
best
interests of
children
to change their living arrangements if one of their parents is frustrating their relationship with the other parent who is able to offer them a good and loving home, this is unlikely to
be
in their
best
interests while that relationship is in fact
being
maintained in accordance with the court's order.
[45] I would therefore allow the appeal.
The grandparent cases
(a) an application for the order hasbeen
made
by
a person who
(i) is entitled to apply for a section 8 order with respect to thechild;
or
(ii) has obtained the leave of the court to make the application;
So it is not a case of parental right opposed to the interests of thechild,
with an assumption that parental right prevails unless there are strong reasons in terms of the interests of the
child.
It is the same test which is
being
applied, the welfare of the
child.
And all that Re K ...[1990] 2 FLR 64) is saying, as I understand it, is that of course there is a strong supposition that, other things
being
equal, it is in the interests of the
child
that it shall remain with its natural parents.
How did the judge deal with the case?
So far as the law is concerned I mustbe
satisfied, if I am to allow this appeal that the justices have got it plainly wrong. That is the test set out in G v G, They have a wide discretion and I must
be
satisfied that they have strayed outside that wide discretion. It is not for me to substitute an order that I would have made,
but
only if I am satisfied they are plainly wrong could I change their decision. It is open to me, either to remit it to the justices for re-hearing or for me to make substitute orders.
24. That, it seems to me, is a repeating of the theme in respect of the approach tochildren
living with their natural parents that had started as long ago. (sic) It has
been
said of the parents that wise or foolish, rich or poor, it is the right of the
child
to
be
![]()
brought
up in the home of his or her natural parent. Of course, those rights are enshrined
by
Articles 6 and 8 of (ECHR).
25. In coming to my decision I have had regard to the way in which that principle has underlined the cases which now goback
some 25 years. The principle was illustrated again in the case of Re W as long ago as 1993 in which the Court of Appeal were clear that it is
best
for a
child
to
be
placed with, and
brought
up
by,
his or her natural parents, all other things
being
equal. Whilst of course particular needs, in particular situations, mean that is not an absolute rule, and it would need to give way to those particular needs or situations, the court was clear that the proper test is the welfare of the
child
and that ordinarily that welfare is met
by
the
child
living with his or her natural parents.
27. Accordingly, it seems to me that the decision in Re G that was cited to the justices is illustrative of a principle that is well established in family law. The issue that I identify in this appeal is whether in fact the justices sufficiently had regard to that principle and whether in exercising their discretion this is a case in which the particular needs and situations of H are such that it should give way to his living with his natural parents.
28. I do not form the view that there is fundamentally sufficient in the argument that his circumstances with his grandmother are such that he should move. They may notbe
ideal,
but
they are "good enough".
29. There is a wider consideration than that. The wider consideration is his short and his long term welfare. I have come to the view that the justices were distractedby
their consideration of the settled way in which he has
been
![]()
brought
up. I have formed the view that whilst (the grandmother) is entitled to every credit for what she had done, that overall it is in this
child's
right to
be
![]()
brought
up
by
his natural parents. His father can provide a satisfactory house in every respect. Accordingly, I have come to the view, applying as I do the test of whether this was plainly wrong, that in circumstances where it is clear that the father can meet this
child's
needs that he would have settled and established home with his own family, that the justices were plainly wrong in coming to their conclusion that H should remain with his grandmother.
30. In my judgment, the authorities and the facts support H's moving to live with his father. He is entitled tobe
![]()
brought
up
by
his natural parents. Whether that will
be
precisely as good is immaterial. The test is whether it is good enough and it is not my task to protect him from every vagary of parenting. The evidence is that it will
be
more than good enough.
31. Indeed, it seems to me on the evidence that handled sensitively there is no reason why it cannotbe
successful. On the evidence, the father is able to meet H's needs. Accordingly, it my judgment, for those reasons I am prepared to allow the appeal against the order`
Postscript