C (a minor), Re

In deciding competing care and control arrangements, the child’s welfare is paramount. The court must approach welfare objectively and may use generally accepted social standards as a guide, while avoiding personal moral views. A lesbian relationship does not itself make a parent unfit or bar care and control. It is nevertheless an important factor when comparing the homes available to the child, including possible effects on the child and school relationships. The Court of Appeal may intervene where the first-instance judge has failed to consider relevant matters and the resulting balance is plainly wrong. Where fresh factual assessment is required, the proper course may be to set aside the order and remit the welfare decision for rehearing.

Following the parents’ separation, their daughter had lived principally with her mother. After the mother moved to Blackpool and began living with a female partner, the child stayed with her father, who applied for care and control. The Shrewsbury County Court awarded care and control to the mother, with reasonable access to the father.

The father appealed. Both homes were loving and physically adequate, but the mother’s partner had served a prison sentence for violence and the child had been attending school in Shrewsbury. The central issues were whether the judge had properly considered the mother’s relationship and the other relevant circumstances, and whether the Court of Appeal could interfere with the welfare decision.

1. Appeal allowed. The county court order was set aside. The care and control question was remitted for rehearing before a judge of the Family Division.
2. Section 1 of the Guardianship of Minors Act 1971 required the child’s welfare to be the first and paramount consideration. Balcombe LJ added that a judge must not allow subjective moral or religious views to determine welfare. In the absence of evidence of different standards in a particular community, generally accepted standards in the society in which the child lives may guide the assessment. The future provisions of sections 1(1) and 1(3) of the Children Act 1989 would not materially alter this approach.
3. Applying G. v. G. [1985] 1 WLR 647 and the approach approved in In re F (a Minor) (1976) Fam. 238, the Court of Appeal could intervene where the judge was plainly wrong. A clear error in balancing factors could justify intervention where it did not depend on the trial judge’s advantage in seeing and hearing witnesses.
4. The fact that the mother was living in a lesbian relationship did not itself make her unfit or disqualify her from care and control. It was, however, an important factor in comparing the alternative homes. The court had to consider the existence of the relationship as part of the home environment, possible effects on the child, and possible distress or embarrassment arising from school friends’ reactions. The relationship was not conclusive, and a sensitive and loving relationship could be preferable to a less satisfactory alternative.
5. The county court judge had treated the relationship as immaterial because the child would encounter it through access in any event. He had also failed to address the partner’s conviction for violence and the child’s differing school histories. Those omissions amounted to a plain error in the welfare assessment. The court should not speculate about the child’s sexual development without expert evidence, but that did not remove the need to consider the other relevant consequences.
6. Pending rehearing, interim care and control was vested in the father with reasonable access for the mother. The Official Solicitor was to be invited to act as guardian ad litem and to consider obtaining appropriate expert evidence. The rehearing was to be expedited.

1. Court of Appeal (Civil Division) — On 24 August 1990, allowed the father’s appeal, set aside the county court order, and ordered a rehearing before a judge of the Family Division: [1990] EWCA Civ 9.
2. Shrewsbury County Court — On 4 June 1990, His Honour Judge Malcolm Ward awarded care and control to the mother, with reasonable access to the father.