In re G (children) (FC)

The House of Lords allowed the mother's appeal and restored her position as the children's primary carer. The court reaffirmed that the child's welfare is the paramount consideration under section 1(1) Children Act 1989 and that the statutory checklist in section 1(3) must be applied. While there is no presumption in favour of a natural parent, the fact of biological, gestational and psychological parenthood is an important and significant factor in the overall welfare assessment and must be explicitly considered in finely balanced cases.

The court held that, although the mother had deliberately breached a residence order, once good quality contact had been reinstated in accordance with court orders the drastic step of changing the children's primary home was not justified. The House therefore reversed the allocation of residence time between the households and made a fresh Family Assistance Order to support the arrangements.

Background and parties

• CG (the mother) and CW (her former partner) conceived two daughters by anonymous donor insemination abroad and brought them up together until the relationship broke down. CW also had a son from an earlier anonymous donor insemination whom the girls regarded as a brother.
• Following separation, CW applied for contact and a shared residence order; the litigation concerned with whom the children should live as their primary home after CG moved the children from Leicester to Cornwall in breach of an earlier order.

Procedural history and relief sought

• CW applied in September 2003 for contact and shared residence; leave was granted in respect of the younger child. Interim contact arrangements were ordered. After CG moved the children to Cornwall in breach of a court order, CW brought applications (including under the Family Law Act 1986) which culminated in a contested hearing before Bracewell J in the High Court. Bracewell J ordered that the children's primary home be with CW. CG appealed to the Court of Appeal (dismissed: [2006] EWCA Civ 372) and then to the House of Lords.

Issues framed by the court

• How much weight should be attached, within the Children Act 1989 welfare analysis, to the fact that one party is the child's natural and legal parent while the other is not?
• What approach should the court take where the primary carer is reluctant to acknowledge or promote the importance of the other parent in the child's life, especially where there has been deliberate disobedience of court orders?

Court’s reasoning and conclusions

• The House reiterated that the welfare of the child is paramount (Children Act 1989, s 1(1)) and that the factors in s 1(3) must be considered. There is no legal presumption in favour of natural parents, but parenthood (genetic, gestational and psychological) is a significant factor which often weighs heavily in the welfare balance.
• The court examined the factual matrix: CG was the gestational and biological mother and had been the main carer; CW had become a psychological parent and had an important place in the children’s lives. Although CG had acted badly in breaching orders, after the children were located contact was reinstated and was continuing in accordance with court orders.
• The Lords concluded that where contact is being maintained in line with a court order, uprooting children from their mother's care is unlikely to be justified simply as a means of enforcing compliance. Given the significance of the mother’s role and the ongoing contact with CW, the balance did not support changing the children's primary home.

Disposition

• The appeal was allowed. The House reversed the allocation of residence time between the households, reinstated the mother as primary carer, and made a fresh Family Assistance Order for six months to support implementation and communication.

Appeal allowed. The House held that the welfare principle under section 1(1) Children Act 1989 is paramount and requires an explicit assessment of the significance of natural parenthood (genetic, gestational and psychological) in the overall welfare balance. Although the mother had deliberately breached a residence order, because good quality contact with the other significant adult was re-established and maintained, it was not in the children's best interests to change their primary home; the allocation of residence time was therefore reversed and a fresh Family Assistance Order made.

High Court (Family Division), Bracewell J (residence ordered in favour of CW); Court of Appeal, appeal dismissed: Re G [2006] EWCA Civ 372; House of Lords allowed the appeal: [2006] UKHL 43.