Re M (child's upbringing)

In determining a child’s upbringing, the child’s welfare remains paramount. The court must nevertheless begin with a strong supposition that, other things being equal, it is in the child’s interests to be brought up by the biological parents. That supposition is not a proprietary parental right and yields where the child’s welfare requires another arrangement.

Where a child has been removed from the natural parents under an arrangement whose essential conditions have failed, the court must weigh the competing benefits and risks. It may order return when delay would increase the eventual harm and the child cannot maintain a meaningful connection with the natural family, culture and background while remaining elsewhere.

P, a South African boy, had lived from infancy with the appellant, a white South African woman, and her daughters. In 1992 his biological parents agreed that he could accompany the appellant to England, but disputed whether the arrangement was temporary or permanent. The appellant later sought adoption and a residence order.

Thorpe J rejected adoption and immediate return, but ordered that P remain with the appellant pending a review in two years directed to determining the date and circumstances of his permanent return to South Africa. The appellant appealed, seeking a general reconsideration of P’s residence and upbringing. The parents cross-appealed, seeking an earlier return. The central issues were the proper weight to be given to the biological parents’ position, the effect of failed arrangements for contact and cultural continuity, and the timing of P’s return.

1. Appeal dismissed; cross-appeal allowed. P was to return to South Africa at Easter.
2. The court held that welfare is the paramount consideration, but that the biological relationship gives rise to a strong supposition that, other things being equal, a child should be brought up by the natural parents. That supposition is a guide to resolving competing claims, not a proprietary parental right, and remains subordinate to welfare.
3. The approach was supported by Re K D [1988] AC 806, Re K (a minor) (custody) [1990] 2 FLR 64 and Re H (a minor) (custody: interim care and control) [1991] 2 FLR 109. Ward LJ added reasons concerning the divergence between the approaches in Re K (a minor) (wardship: adoption) [1991] 1 FLR 57 and Re W (a minor) (residence order) [1993] 2 FLR 625.
4. Thorpe J was right that P’s development had ultimately to be Zulu development, rather than Afrikaans or English development. The parents’ consent depended on maintaining their relationship with P and his connection with his people and culture. Those conditions had substantially failed, and there was no realistic prospect of restoring meaningful contact while P remained in England.
5. An immediate return would be traumatic, but the longer P remained in England the greater the eventual difficulty of separation and cultural disconnection. Further delay was therefore contrary to welfare. Section 1(2) of the Children Act 1989 reinforced the need to avoid delay likely to prejudice welfare.
6. Neill LJ saw force in the submission that the master plan could not fetter the discretion of the judge conducting the future review, but the issue did not require final determination because return was ordered. The formal order was appeal dismissed, cross-appeal allowed, legal aid taxation, and no order as to costs for the Official Solicitor.

• Court of Appeal (Civil Division): Appeal from the Family Division before Mr Justice Thorpe. The court dismissed the appellant’s appeal and allowed the parents’ cross-appeal, directing P’s return to South Africa at Easter.