Michaelmas Term  UKSC 5
On appeal from:  EWCA Civ 545
In re B (A Child) (2009) (FC)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
19 November 2009
Heard on 14 October 2009
Appellant (GB) |
Alison Ball QC
(Instructed by Powleys)
Pamela Scriven QC
(Instructed by Allan Rutherford Solicitors)
The Family Proceedings Court Hearing
"In my opinion, there is very little in [RJB's] commitment, motivation and capabilities to indicate that he could not meet [Harry's] needs. He is in a secure relationship and can provide stability to his son. He and his wife possess the necessary knowledge and skills to raise a child healthily.
Their situation with the birth of their child places them in an untested situation that only a period of time would resolve."
"In my opinion there needs (sic) to be compelling reasons to disrupt [Harry's] continuity of care and the consistency and predictability that accompanies (sic) it."
"We have not found compelling reasons to disrupt [Harry's] continuity of care and the consistency and predictability that accompanies (sic) it."
The decision of Judge Richards
"… I have come to the view, applying as I do the test of whether this was plainly wrong, that in circumstances where it is clear that the father can meet this child's needs that he would have a settled and established home with his own family, that the justices were plainly wrong in coming to their conclusion that [Harry] should remain with his grandmother."
"For my part, I hope I made it clear that [Harry's] welfare is, and remains, the paramount consideration. The test that the justices should have applied was the welfare test. That is the test that I apply as well."
The judgment of the Court of Appeal
"In re G (Residence: Same-sex Partner)  EWCA Civ 462,  2 FLR states a child should not be removed from primary care of biological parents. [Harry] has never resided with his father. Grandmother has been his psychological parent."
"25. … in our judgment, it was clearly an error of law for the justices to say, as they did, that it required compelling reasons to remove H from his grandmother's care. Whilst they make it clear that [Harry's] welfare was their paramount consideration, the question which they had to decide was whether or not it was in [Harry's] interests in both the short and the long term to live with his grandmother or his father. The introduction of 'compelling reasons' clearly means, we think, that the justices gave too much weight to the 'status quo' argument, and too little to the role of his father in [Harry's] life and care. Indeed, they appear to have created a presumption that the status quo should prevail unless there are compelling arguments to the contrary."
In re G
"The present unhappy dispute is between the children's mother and her former partner Ms CW. In this case, as in all cases concerning the upbringing of children, the court seeks to identify the course which is in the best interests of the children."
He then said:
"Their welfare is the court's paramount consideration. In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or her biological parents without compelling reason. Where such a reason exists the judge should spell this out explicitly."
" My Lords, the [Children Act 1989] brought together the Government's proposals in relation to child care law and the Law Commission's recommendations in relation to the private law. In its Working Paper No 96, Family Law: Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Law Commission said:
'We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.'
Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained in J v C  AC 668, 711, this means that it 'rules upon or determines the course to be followed'. There is no question of a parental right. As the Law Commission explained:
'the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child'
or, as Lord MacDermott put it, the claims and wishes of parents 'can be capable of ministering to the total welfare of the child in a special way'."