E-R (Child Arrangements)

Neither biological parenthood nor a substantial period of care creates a presumption in favour of residence. Each is a significant factor whose weight depends on the child’s welfare and the particular facts. The court must apply the statutory welfare checklist and assess the child’s relationships, attachments, needs, risks and each proposed carer’s ability to meet those needs. Following parental bereavement, continuity, stability and protection from further attachment disruption may carry substantial weight. Biological parenthood is relevant only insofar as it contributes to welfare, not as an independent parental right. In family proceedings, costs do not ordinarily follow the event, but an order may be justified by unreasonable or reprehensible conduct.

The case concerned the future living arrangements of a six-year-old child whose mother had died after a terminal illness. The child had lived with family friends before and after her mother’s death and had re-established contact with her father, who lived in Suffolk with his partner. The father sought an order that the child live with him. The family friends sought her continued residence with them and substantial contact for the father.

A previous order in favour of the father had been set aside on appeal because the first-instance judge had treated natural parenthood as a presumption and had given excessive weight to biological ties: [2015] EWCA Civ 405. The rehearing addressed welfare, attachments, bereavement, continuity of care, risks of change, and the parties’ capacity to meet the child’s needs. The court also determined costs and permission to appeal.

1. The court ordered that the child should live and make her primary home with the family friends. It made detailed Child Arrangements Orders providing regular contact with the father and his partner, increasing holiday contact, flexible communication, and arrangements supporting the child’s relationship with her paternal half-sister.

2. Natural parenthood does not create a presumption in favour of residence. Nor does a significant period of care create a presumption in favour of the existing carer. Both are significant factors, but their weight depends on the child’s unique circumstances and best interests. Parenthood has significance only as a contributor to welfare (Re B [2009] UKSC 5, at [33], [37]).

3. The court applied the welfare checklist in section 1(3) of the Children Act 1989. The child’s age and background, wishes and feelings, physical, emotional and educational needs, the likely effect of change, risk of harm, and the capability of each proposed carer were all materially engaged.

4. Continuity of care and established psychological attachments were especially important after parental bereavement. The family friends had become alternative primary carers and psychological parents. Biological parenthood remained significant because of the love, commitment, origins and lineage it could provide, but parental status had no independent claim to priority. The court applied the distinction between biological and psychological parenthood discussed in Re G [2006] UKHL 43, at [33], [35] and [40].

5. The court accepted that moving the child would risk a second attachment disruption, renewed grief and serious psychological harm. Conflict between the adults, and conflict within the father’s household, created additional risks. The father had much to offer the child, but his lack of self-reflection, hostile allegations, inconsistent involvement and limited attunement to her needs weighed against an immediate transfer of residence.

6. The father was ordered to contribute £10,000 towards the family friends’ costs. Costs were discretionary and did not ordinarily follow the event. The relevant considerations included conduct, the reasonableness of pursuing issues, proportionality, expense and the need to preserve future co-operation. The father’s opposition to travel, resistance to the jointly instructed expert and other applications were unreasonable and had caused additional costs.

7. Permission to appeal was refused because the proposed appeal had no realistic prospect of success. The father could renew the application before the Court of Appeal.

1. Court of Appeal allowed the appeal from the earlier final order and directed a rehearing, holding that the first-instance judge had wrongly applied a presumption in favour of natural-parent care and had given excessive significance to biological ties: [2015] EWCA Civ 405; [2016] 1 FLR 521.

2. High Court (Family Division) conducted the rehearing, ordered that the child live with the family friends with structured contact for the father, ordered a £10,000 costs contribution, and refused permission to appeal.