RESIDENCE: Re B (A Child) [2009] UKSC 5

26 NOV 2009

(Supreme Court; Lord Hope of Craighead DPSC, Baroness Hale of Richmond, Lord Collins of Mapesbury, Lord Kerr of Tonaghmore, Lord Clarke of Stone-cum-Ebony; 19 November 2009)

The child had lived with the maternal grandmother throughout his life. Initially the mother had also lived with the grandmother, but the mother had left when the child was 2 1/2, after which the child was cared for entirely by the grandmother, who obtained a residence order. The father had been granted parental responsibility, and a contact order. He enjoyed regular contact until he was sentenced to 18 months' imprisonment for a racially aggravated assault; the child visited him in prison on a number of occasions. After his release the father resumed contact every weekend. When the father settled down and married he applied for a residence order, supported by the mother, who also had contact every weekend. The justices found that both the grandmother and the father could meet the child's needs, but ordered that the child should remain with the grandmother, with contact to both parents, largely on the basis that the child had lived with the grandmother thus far. On appeal this decision was reversed, and a residence order was made in the father's favour. The Court of Appeal dismissed the grandmother's appeal, concluding that in making the original order the justices had failed to distinguish between the roles of parent and grandparent in a child's life, and had made an error of law by saying that compelling reasons were required to justify removing the child from the grandmother's care. The justices had given too much weight to the status quo argument, and too little to the role of the father in the child's life and care and, although criticisms could be made of the appeal judge's reversal of the justices' decision, overall the judge's approach had not been plainly wrong. The Court of Appeal noted that the principal message of the House of Lord's decision in Re G [2006] UKHL 43 was that parental 'rights' in this context had no role to play; however, parenthood, which could take a variety of forms, was an important constituent to weigh in the welfare equation.

The Supreme Court allowed the grandmother's appeal. There was no presumption in favour of a biological parent; all consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what was in the child's best interests, which was the paramount consideration. It was only as a contributor to the child's welfare that parenthood assumed any significance; in common with all the other factors bearing on what was in the best interests of the child, it must be examined for its potential to fulfil that aim. The judge had not afforded the child's welfare the dominant position that it should have occupied in the decision as to his residence, instead allowing the question of the child's so called right to be raised by his biological parent to influence, indeed to define, the outcome of the residence debate. Although the justices had, unfortunately, used the term 'compelling reasons', quoting the local authority, they had not said that they required such reasons to remove the child from the grandmother, merely that such reasons had not been found. The justices had not failed to grapple with the respective roles of father and grandmother, and had not overemphasised the importance of preserving the status quo. Status quo would not always assume the importance that had to be attached to it in the present case, but it had been of considerable significance in the debate as to where this child's best interests lay.

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