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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> B (A Child), Re [2009] UKSC 5 (19 November 2009) URL: https://www.bailii.org/uk/cases/UKSC/2009/5.html Cite as: [2010] 1 All ER 223, [2010] Fam Law 143, [2009] WLR 2496, [2010] 1 FCR 1, [2009] 1 WLR 2496, [2010] 1 FLR 551, [2009] UKSC 5 |
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Michaelmas Term [2009]
UKSC 5
On appeal from: [2009] EWCA
Civ
545
JUDGMENT
before
Lord Hope, Deputy President
Lady Hale
Lord Collins
Lord Kerr
Lord Clarke
JUDGMENT GIVEN ON
19 November 2009
Heard on 14 October 2009
Appellant (GB) Alison ![]() ![]() Peter Horrocks (Instructed ![]() ![]() |
Respondent (RJB) Pamela Scriven QC Cherie Parnell (Instructed ![]() ![]() |
|
|
Respondent (GLB) |
LORD KERR
FamilyBackground
The Family Proceedings Court Hearing
"In my opinion, there is very little in [RJB's] commitment, motivation and capabilities to indicate that he could not meet [Harry's] needs. He is in a secure relationship and can provide stability to his son. He and his wife possess the necessary knowledge and skills to raise achild
healthily.
Their situation with thebirth
of their
child
places them in an untested situation that only a period of time would resolve."
"In my opinion there needs (sic) tobe
compelling reasons to disrupt [Harry's] continuity of care and the consistency and predictability that accompanies (sic) it."
"We have not found compelling reasons to disrupt [Harry's] continuity of care and the consistency and predictability that accompanies (sic) it."
The decision of Judge Richards
"… 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 thischild's
needs that he would have a settled and established home with his own family, that the justices were plainly wrong in coming to their conclusion that [Harry] should remain with his grandmother."
"For my part, I hope I made it clear that [Harry's] welfare is, and remains, the paramount consideration. The test that the justices should have applied was the welfare test. That is the test that I apply as well."
The judgment of the Court of Appeal
"In 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. [Harry] has never resided with his father. Grandmother has
been
his psychological parent."
"25. … in our judgment, it was clearly an error of law for the justices to say, as they did, that it required compelling reasons to remove H from his grandmother's care. Whilst they make it clear that [Harry's] welfare was their paramount consideration, the question which they had to decide was whether or not it was in [Harry's] interests inboth
the short and the long term to live with his grandmother or his father. The introduction of 'compelling reasons' clearly means, we think, that the justices gave too much weight to the 'status quo' argument, and too little to the role of his father in [Harry's] life and care. Indeed, they appear to have created a presumption that the status quo should prevail unless there are compelling arguments to the contrary."
In re G
"The present unhappy dispute isbetween
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."
He then said:
"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 achild
![]()
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."
"[30] My Lords, the [Children
Act 1989]
brought
together the Government's proposals in relation to
child
care law and the Law Commission's recommendations in relation to the private law. In its Working Paper No 96, Family Law: Review of
Child
Law: Custody (1986), at para 6.22, having discussed whether there should
be
some form of presumption in favour of natural parents, the Law Commission said:
'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.'
Nor should we. The statutory position is plain: the welfare of thechild
is the paramount consideration. As Lord MacDermott explained in J v C [1070] AC 668, 711, 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 theirchild'
or, as Lord MacDermott put it, the claims and wishes of parents 'canbe
capable of ministering to the total welfare of the
child
in a special way'."