B (A Child), Re

In a private-law child residence dispute, the child’s welfare is the sole and paramount consideration. Parenthood is important, but creates no presumption or preferential position and confers no independent right to residence. A tribunal errs in law if it treats removal from a grandparent’s established care as requiring compelling reasons, thereby giving the status quo undue weight. On a second appeal, arguability, strength or alleged plain wrongness alone is not a compelling reason. Permission requires an important point of principle or practice or another compelling reason. Once legal error is shown on a first appeal, the appellate judge may exercise the discretion, provided the resulting decision is not plainly wrong.

The child had lived with his maternal grandmother, who held a residence order. The family proceedings court refused the father’s application for residence and continued the grandmother’s care arrangement. On appeal, His Honour Judge Richards, sitting as a High Court judge, reversed that decision and directed that the child live with his father. The grandmother sought permission for a further appeal. The Court of Appeal considered the second-appeal threshold and whether the justices had erred in applying the welfare test under section 1 of the Children Act 1989, particularly in weighing parental care against established grandparental care.

Permission to appeal was granted, but the substantive appeal was dismissed. Permission to appeal to the House of Lords was refused.

1. The second-appeal threshold under section 55(1) of the Access to Justice Act 1999 and CPR 52.13 applies equally in family cases. An arguable appeal, a strong prospect of success, or an assertion that the decision was plainly wrong does not alone amount to a compelling reason. The statutory test makes no distinction merely because the proposed appellant succeeded at trial. The court granted permission because the case raised an important point of principle.
2. Under section 1 of the Children Act 1989, welfare is paramount and is the sole domestic test. Parental rights do not determine the outcome. Parenthood is nevertheless an important and significant factor in the welfare assessment, without creating a presumption or preferential starting position in favour of a natural parent. The Court of Appeal applied the principles stated in Re G [2006] UKHL 43.
3. The justices failed adequately to analyse the respective roles of the father and grandmother. They also erred in law by requiring compelling reasons to remove the child from the grandmother’s care. That approach gave excessive weight to continuity and the status quo and insufficient weight to the father’s role.
4. The High Court judge correctly directed himself that he could interfere only if the justices were plainly wrong, as required on a first appeal by G v G [1985] 1 WLR 647. Once the justices’ errors of law were identified, the judge was entitled to exercise the discretion himself rather than remit the matter.
5. The judge’s conclusion that the child’s welfare was best served by living with his father was not plainly wrong. The court noted that good-enough parenting by a natural parent is not necessarily preferable to first-rate grandparental care, but no concluded view was required because the point had not been fully argued.

1. Court of Appeal (Civil Division) — Permission granted, substantive appeal dismissed, and permission to appeal to the House of Lords refused.
2. High Court — On 3 April 2009, His Honour Judge Richards, sitting as a High Court judge, allowed the appeal from the family proceedings court and directed that the child live with his father.
3. Family proceedings court — Refused the father’s residence application and ordered that the child continue to reside with his maternal grandmother, while making contact orders for both parents.