In re D (a child)

In proceedings about a child’s upbringing, welfare is paramount and determines the outcome. Natural or biological parenthood creates no parental right, presumption or preferential starting point. It is nevertheless an important welfare factor. Genetic, gestational and social or psychological parenthood may each contribute significantly to a child’s welfare.

Changing a child’s primary home may be justified where a carer frustrates an important relationship with another parent. Such a change is unlikely to promote welfare while court-ordered contact is being maintained. In difficult or finely balanced cases, systematic consideration of the welfare checklist helps prevent one concern from receiving disproportionate weight.

Two women arranged for one of them, CG, to conceive two children through anonymous donor insemination. They raised the children together until their relationship ended. CG was the children’s genetic, gestational and principal psychological parent. Her former partner, CW, had also become a psychological parent.

After the Court of Appeal made a shared residence order in Re G (Residence: Same-Sex Partner) [2005] EWCA Civ 462, CG secretly moved the children to Cornwall in breach of an order requiring them to remain in Leicester. Bracewell J subsequently made CW’s home the children’s primary home because she lacked confidence that CG would preserve their relationship with CW. The Court of Appeal dismissed CG’s appeal in Re G [2006] EWCA Civ 372.

The issues were the weight attributable to CG’s natural and legal parenthood, and whether her conduct and the risk of future marginalisation of CW justified transferring the children’s primary home despite the continuation of ordered contact.

1. Appeal allowed unanimously. Baroness Hale of Richmond delivered the leading speech, with which all four other Law Lords agreed. The allocation of time between the two homes was reversed so that the children’s principal home was again with CG. A fresh Family Assistance Order was made for six months.

2. Per Baroness Hale, the welfare principle in section 1 of the Children Act 1989 applied in the same way to this dispute as to any other dispute about children. Following J v C [1970] AC 668, welfare was not merely one consideration of superior weight. It determined the course to be followed after all relevant circumstances had been assessed. Natural parenthood therefore created no parental right, presumption or preferential starting point.

   Parentage was nevertheless an important and significant welfare factor. Natural parenthood could be genetic, gestational, or social and psychological. Each relationship could make a distinctive contribution to welfare. Legal parenthood conferred standing and family status but did not necessarily establish the person’s welfare significance.

3. Per Baroness Hale, CG combined genetic, gestational and psychological parenthood, while CW was an important psychological parent. The courts below had failed to assess the significance of the children’s relationship with their mother. The children were happy and thriving in her care, and their primary home should not have been changed without a very good welfare reason.

   Lord Nicholls, in observations expressly agreed by Lord Rodger, emphasised that rearing by a biological parent will ordinarily be expected to promote welfare. Removal from that parent’s primary care requires a compelling reason which the judge should identify explicitly. This did not create a legal presumption in the parent’s favour.

4. Per Baroness Hale, a contemplated change of residence may encourage compliance where a primary carer is obstructing an important relationship with another parent. Its object is to secure arrangements made for the child’s welfare, rather than to punish parental misconduct. Only where those arrangements are not being observed may the court conclude that a different home will better promote welfare.

   CG’s secret move and deliberate breach were serious and had harmed the children. Once contact was restored, however, she complied with the arrangements. The risk of future marginalisation did not justify uprooting the children while their relationship with CW was being maintained.

5. Per Baroness Hale, difficult or finely balanced cases benefit from systematic consideration of every factor in section 1(3) of the Children Act 1989. This is particularly important where concern about one carer’s attitude towards another risks overwhelming the overall welfare assessment.

1. House of Lords: Allowed the appeal unanimously, reversed the allocation of time between the two homes and made a fresh six-month Family Assistance Order: [2006] UKHL 43.
2. Court of Appeal: Dismissed CG’s appeal from Bracewell J’s order: Re G [2006] EWCA Civ 372.
3. High Court: Bracewell J preserved the shared residence order but made CW’s home the children’s primary home because she lacked confidence that CG would maintain their relationship with CW.
4. Court of Appeal: Allowed CW’s earlier appeal, made a shared residence order and affirmed the restriction requiring CG to remain in Leicester: Re G (Residence: Same-Sex Partner) [2005] EWCA Civ 462; [2005] 2 FLR 957.
5. Earlier proceedings: Her Honour Judge Hughes refused a shared residence order but ordered extensive contact, information-sharing and continued residence in the Leicester area.