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Family Law

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19 NOV 2009

Supreme Court allows child to continue to live with grandmother

The Supreme Court has unanimously allowed an appeal by a grandmother to allow her grandchild to continue to live with her despite the absent parents wish for their child to live with the father.

In their judgment delivered by Lord Kerr, the Justices reaffirmed that, where in a case between private individuals a child's custody or upbringing is in question, the welfare of the child is the paramount consideration.

The three year old child's parents separated before his birth and until recently the child lived with his maternal grandmother. The mother lived with the child at the grandmother's home intermittently from the time he was born until July 2006 when she then left and never returned.

In November 2006, the grandmother was granted, by consent, a residence order in respect of the child and the father was granted orders for contact.

In May 2008, the father, supported by the mother, applied for and was refused a residence order in respect of the child. In making their decision, the justices noted that they had not found compelling reasons to disrupt the continuity of care that the grandmother provided the child.

The father successfully appealed in the High Court, the judge finding that the justices had been plainly wrong in making the residence order in favour of the grandmother, having been distracted by the settled way in which the child had been brought up by the grandmother. In April 2009, the High Court made an order that the child should reside with his father.

The grandmother unsuccessfully appealed to the Court of Appeal which held that in giving disproportionate weight to the status quo the justices had made an error of law sufficient to entitle the circuit judge to overrule their decision.

Applying Re G (Children) (Residence: Same Sex Partner) [2006] 2 FLR 629, and in particular the observations in that case of Lord Nicholls, the Court of Appeal held that although a child's welfare was the court's paramount consideration, the court should always bear in mind that, ordinarily, the rearing of a child by his biological parent could be expected to be in his best interests.

However, the Supreme Court Justices decided that the Court of Appeal misinterpreted Re G. When, in that case, Lord Nicholls said that courts should keep in mind that the interests of a child will 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 have been born. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child's best interests.

This is the paramount consideration. It is only as a contributor to the child's welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.

Any discussion of a child's right to be brought up by its natural parents is misplaced. The only consideration for the court is the child's welfare; to talk of a child's rights detracts from that consideration.

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