In re B (A Child) (2009)

In private law proceedings concerning a child’s residence or contact, the child’s welfare is the paramount and overriding consideration. Biological parenthood creates no right or presumption in favour of parental care. Its significance depends solely on its contribution to the child’s welfare.

The court must identify the placement that best serves the child’s interests. It cannot substitute a merely “good enough” placement for a better one. Continuity of care and preservation of the status quo may carry substantial weight where disruption threatens an established source of stability, but their importance depends on the circumstances.

A young child had lived almost continuously since birth with his maternal grandmother, who was his principal carer. The Family Proceedings Court made a residence order in her favour after weighing the child’s relationships, stability and welfare. On appeal, a High Court judge directed that residence be transferred to the father. The Court of Appeal dismissed the grandmother’s further appeal in [2009] EWCA Civ 545.

The grandmother appealed to the Supreme Court. The principal issues were whether the justices had wrongly required compelling reasons to disturb the existing care arrangements, whether they had given inadequate weight to biological parenthood, and whether their decision was plainly wrong.

1. The appeal was allowed. The Family Proceedings Court’s residence order in favour of the grandmother was restored, subject to transitional arrangements. Its determination lay comfortably within the range of decisions reasonably available on the evidence: paras 38–43.

2. The welfare of the child is the dominant and overriding consideration in every private law dispute about residence or contact. Biological parenthood has significance only to the extent that it contributes to the child’s welfare. It creates neither a parental right nor a presumption that the child should live with a biological parent: paras 33–37. The court reaffirmed and applied In re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43.

3. Lord Nicholls’s observation in In re G that children ordinarily benefit from upbringing by biological parents did not establish a general rule requiring compelling reasons for another placement. It reflected common experience within the governing welfare inquiry. Many residence disputes fall outside the ordinary pattern, so biological parenthood may not provide a reliable guide: paras 34–35.

4. The High Court judge erred by treating the child’s supposed right to be raised by his biological father as effectively determinative. The inquiry was not whether the father’s parenting would be “good enough”. The court had to identify the placement that best served the child’s interests, rather than accept a second-best but adequate alternative: paras 18–23.

5. The justices’ reasons had to be read fairly and as a whole. Their isolated reference to an absence of “compelling reasons” did not establish a presumption in favour of the status quo. Their reasons demonstrated a careful evaluation of the evidence and recognition that the child’s welfare was paramount: paras 15–16, 29–32 and 38.

6. Under G v G [1985] 1 WLR 647, the appellate court could interfere with the justices’ discretionary welfare assessment only if it was plainly wrong. That threshold was not met. The child’s strong bond with his grandmother, the threatened disruption to his stability and the father’s recently changed and untested domestic arrangements provided ample support for the order: paras 39–42.

7. As general guidance, conditions radically changing a child’s residence or contact arrangements should not ordinarily be imposed when permission to appeal is sought. Such conditions may cause bewilderment and disruption and may improperly discourage a meritorious application: para 43.

1. United Kingdom Supreme Court: Allowed the grandmother’s appeal from [2009] EWCA Civ 545 and ordered a phased return to the arrangements preceding the Court of Appeal’s stay conditions.
2. Court of Appeal: Dismissed the grandmother’s appeal from the Family Division and later gave reasons in [2009] EWCA Civ 545. It stayed the transfer of residence subject to extended contact with the father.
3. Family Division: His Honour Judge Richards, sitting as a High Court judge, allowed the father’s appeal and directed that residence be transferred to him.
4. Family Proceedings Court: Made a residence order in favour of the maternal grandmother and contact orders for both parents.