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Family Law

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Court of Protection Practice and Procedure Conference 2016

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17 JUN 2009

APPEALS/RESIDENCE: Re B (Residence: Second Appeal) [2009] EWCA Civ 545

(Court of Appeal; Wall and Elias LJJ; 11 June 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 2½, 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 grandmother appealed.

It was not a compelling reason to hear a second appeal that the decision on first appeal was plainly wrong; under Access to Justice Act 1999, s 55(1), an important point of principle or practice was required on a second appeal. The strength of the case did not of itself provide a compelling reason to hear an appeal. On the face of it, there was a stronger case for a second appeal if the earlier rulings were in conflict than when they were in harmony, but the statute itself drew no such distinction. This case did raise an important point of principle, namely the inter-relationship between the roles of a parent and a grandparent in the welfare equation, justifying the grant of permission to appeal. It might also be that the effect of a decision relating to the welfare or future upbringing of a child constituted a compelling reason for hearing a second appeal, given that the importance of such decisions could not be over-emphasised. In making the original order the justices had failed to distinguish between the roles of parent and grandparent in a child's life. It had also been an error of law for the justices to say that compelling reasons were required to justify removing the child from the grandmother's care. The question the justices had actually had to decide was whether it was in the child's interests to remain with the grandmother or to live with the father. 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. 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. Although criticisms could be made of the appeal judge's reversal of the justices' decision, overall his approach was not plainly wrong. If, as a matter of policy, longer and more complex cases were being devolved to the family proceedings court, justices might have to explain their reasoning in slightly fuller terms.

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