In re G (children) (FC)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re G (children) (FC)
 UKHL 43
LORD NICHOLLS OF BIRKENHEAD
LORD SCOTT OF FOSCOTE
LORD RODGER OF EARLSFERRY
LORD WALKER OF GESTINGTHORPE
BARONESS HALE OF RICHMOND
Hence a shared residence order was made defining the time which the children would spend in each household (as provided for in section 11(4) of the Children Act 1989). The order requiring CG to continue to live in Leicester (which she had not appealed) was expressly affirmed. (CG later described the Court of Appeal's decision as "appalling" and she would not be the first person to be appalled by an adverse decision in court.)
Of CW and the children he said this:
He also reported favourably, in different ways, of both MG and LP. Of C and the girls he said this:
It is this point which Mr Peter Jackson QC has put at the forefront of his submissions on behalf of the mother. He argues that, whatever the test to be adopted, it was wrong for the courts below to attach no significance whatever to the fact that CG is the child's mother. He also argues that the judge allowed herself to be distracted, by her disapproval of the mother and her behaviour, from a full consideration of the evidence relating to the children's welfare, which would have led her to a different conclusion.
The welfare principle and the natural parent
Section 1(3) supplements this by a list of factors to be considered in contested cases:
The House therefore rejected the proposition that there was any presumption in favour of the natural parents of the child. Lord MacDermott put their position in this way, at p 715:
Lord MacDermott also referred, as did Lord Oliver of Aylmerton in Re KD (A Minor) (Ward: Termination of Access)  AC 806, 828, to a proposition of FitzGibbon LJ in the Irish case of Re O'Hara  2 IR 232, 240, decided before the enactment of the paramountcy principle in 1925:
But he went on to say that the question was,
That was the last word before the Children Act 1989 came into force. In Re W (A Minor) (Residence Order)  2 FLR 625, at p 633, Balcombe LJ agreed "wholeheartedly" with Lord Donaldson and hoped that "this divergence of views, if such it really is, can finally be stilled". Waite LJ also agreed with Lord Donaldson's formulation at p 639, and remarked that:
Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, 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".
The children's welfare
It is, I believe, becoming more common for family judges not only to issue such warnings but also to implement them. However, the object is to ensure that the arrangements which the court has made in the best interests of the child are actually observed. Only if this is not happening will the court conclude that other arrangements will be better for the child.