G (A Child)

Section 10(1)(b) of the Children Act 1989 gives the court a broad power to make a child arrangements order without an application by the person benefiting, where the child’s welfare requires it. The power is not subject to a preliminary requirement that the court first undertake a separate entitlement or leave exercise. The court must ensure that the parties have a proper opportunity to address the proposed order and must decide welfare on the merits. Where involvement of a non-essential third party is opposed, the judge should analyse that issue separately and address the competing arguments. Sparse reasoning does not justify appellate intervention if the judgment read as a whole shows that the relevant issues were understood and explains the decision.

The appeal concerned one paragraph of a child arrangements order made in June 2017 by HHJ Pemberton, sitting as a Deputy High Court Judge. The order permitted the child’s sperm donor’s parents to attend two of the donor’s supervised contacts each year and to send birthday and Christmas cards.

The child’s legal parents appealed. They argued that the order was unavailable because the donor’s parents had no legal or psychological relationship with the child, were not parties, and had not applied for an order or obtained leave. They also argued that the judge had failed to conduct a sufficient welfare analysis and had given inadequate reasons.

Appeal dismissed. The Court of Appeal held that the order was within the court’s statutory power and that the inadequacy of the first-instance reasoning did not amount to a serious procedural error.

1. Statutory power. Section 10(1)(b) of the Children Act 1989 should not be read narrowly. The power incorporates the High Court’s wardship jurisdiction to make the most appropriate order in the child’s interests without being obstructed by procedural hurdles. The power must nevertheless be used sparingly and cautiously, after the parties have had proper time to make submissions. The court applied the principle stated by Butler-Sloss LJ in Gloucestershire County Council v P [1999] 2 FLR 61.
2. Welfare inquiry. Where no application has been made, the court need not carry out a separate preliminary mental exercise under section 10(9) before considering welfare. It must ensure that the parties have an opportunity to be heard and then decide on the merits whether an order is in the child’s interests. That evaluation may include the third party’s connection with the child, the reasons for making the order and all the circumstances.
3. Adequacy of reasons. The involvement of the donor’s parents deserved separate analysis because it was opposed by the legal parents, was not essential to the child’s identity contact and raised a possible risk of confusion. The judge should have given her own reasons and addressed the opposing arguments rather than simply adopting the Guardian’s analysis.
4. Nevertheless, the order was plainly open to the judge on the evidence. Reading the evidence and judgment as a whole, the judge had understood the relevant issues and the legal parents could understand why the order had been made. The sparse reasoning therefore did not amount to a serious procedural error warranting appellate intervention.

• Court of Appeal (Civil Division): The parents’ appeal was dismissed. The court held that section 10(1)(b) permitted the order and that the lower court’s sparse reasoning did not amount to serious procedural error. [2018] EWCA Civ 305.
• HHJ Pemberton, sitting as a Deputy High Court Judge: In June 2017 made a child arrangements order permitting the child’s donor’s parents to attend two contacts each year and send cards.