B ( A Child)
| Jurisdiction | England & Wales |
| Judge | LORD KERR |
| Judgment Date | 19 November 2009 |
| Neutral Citation | [2009] UKSC 5 |
| Date | 19 November 2009 |
| Court | Supreme Court |
[2009] UKSC 5
Lord Hope, Deputy President
Lady Hale
Lord Collins
Lord Kerr
Lord Clarke
Appellant (GB)
Alison Ball QC
Peter Horrocks
(Instructed by Powleys)
Respondent (RJB)
Pamela Scriven QC
Cherie Parnell
(Instructed by Allan Rutherford Solicitors)
Respondent (GLB)
In Person
This is a judgment of the Court.
This appeal requires a revisiting of a vexed but highly important topic. The significance of parenthood in private law disputes about residence and contact has exercised many courts over many years but one might have thought that the final word on the subject had been uttered in the comprehensive and authoritative opinion of Baroness Hale of Richmond in In re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43, [2006] 1 WLR 2305. As this case illustrates, however, misunderstandings about the true import of that decision and the applicable principles persist.
The case concerns a young boy whom we will call Harry, although that is not his real name. Harry will be four years old in December of this year. Until recently, apart from at weekends, he has lived continuously with the appellant, GB, who is his maternal grandmother. On 6 March 2009 Lowestoft Family Proceedings Court made a residence order in favour of GB. A contact order allowing staying contact with both parents was also made. The orders of the Family Proceedings Court were appealed by Harry's father RJB to the Family Division. His Honour Judge Richards, sitting as a High Court Judge, heard the appeal on 3 April 2009 and he made an order which, among other things, directed that there should be a transfer of residence to the father on 25 April.
GB appealed Judge Richards' order and her appeal was heard by the Court of Appeal (Wall and Elias LJJ) on 21 May 2009. At the conclusion of the hearing, the court dismissed the appeal and stated that the reasons for dismissal would be given later. Permission to appeal to the House of Lords was refused. The reasons for dismissing the appeal were provided in a judgment handed down on 11 June 2009. A stay on the transfer of residence was granted on that date to allow GB to petition the House of Lords for permission to appeal. It was a condition of the grant of the stay, however, that Harry should have contact with his father from Thursday afternoon until 4 pm on Monday each week. That level of contact continued until the hearing of the appeal before this court. Permission to appeal was granted on 30 July 2009 and the appeal was heard on 14 October. Both GB and RJB were represented on the appeal. Harry's mother, GLB, appeared on her own behalf and her only – albeit important – submission to this court was to the effect that she wanted the best for her son. When the hearing ended, this court announced that the appeal would be allowed for reasons that we would provide at a later date. This judgment contains those reasons.
Family Background
Harry's parents met in the autumn of 2004. They separated in April 2005, eight months before Harry was born. GB has been principally responsible for caring for him from the time of his birth. Indeed, she was present when he was born and immediately afterwards he went to live in her home. Until the order of the Court of Appeal giving extended contact to his father, Harry has lived there ever since.
Neither of Harry's parents was able to care for him satisfactorily in the first years of his life. His mother, GLB, lived with her mother and Harry intermittently at GB's home from the time that he was born until July 2006. She left GB's home then and has not returned.
On 9 November 2006 GB was granted a residence order. This was made on consent. At the same time a parental responsibility order was made in favour of Harry's father, RJB. This also appears to have been made on consent. Thereafter he spent a night and a day of every weekend with each of his parents in turn.
In July 2007, Harry's father was convicted of racially aggravated assault. He was sentenced to a term of imprisonment. It is not clear whether this term was twelve or eighteen months but that is not important in relation to the issues which arise on the appeal. While in prison RJB met SB, the sister of another inmate. On his release in March 2008 they formed a relationship and they married some time later. On 11 February 2009 their daughter was born. SB also has an older daughter of about the same age as Harry from an earlier relationship. The older daughter lives with RJB, SB and the daughter born in February 2009. RJB has a much older son from another relationship but there is no contact between this son and his father.
GB has not been without difficulties in her personal life. Tests have revealed that she has had a high alcohol consumption level in the past. She has a conviction for driving with excess alcohol and she has been the victim of domestic violence. Some episodes of this violence occurred in Harry's presence but the person who was responsible for them no longer lives with GB.
The Family Proceedings Court Hearing
On 28 May 2008 Harry's mother applied for a residence order. In the course of the proceedings which followed, Harry's father made his own application for a residence order. Despite having applied herself for a residence order, Harry's mother supported the father's application. The order of 9 November 2006 in favour of GB was, of course, still in force at this time and she made plain her wish to continue to care for Harry.
A report from a social care manager of the local authority, AW, was prepared for the hearing pursuant to section 7 of the Children Act 1989. It is dated 4 January 2009. It is not clear whether AW spoke to SB, the wife of Harry's father, but he certainly spoke to Harry's grandmother and to both his parents. AW considered that Harry was thriving in the care of his grandmother. He enjoyed contact with other family members, however, and had developed positive relationships with them. AW concluded that Harry's mother was not capable of providing a safe and stable environment for Harry. While there were some concerns about GB, AW reached the view that she had proved capable of meeting Harry's needs. In relation to Harry's father, AW said this:
'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.'
AW considered that to transfer Harry's residence to his mother or father would have 'a significant impact' on him. In his view, the stability and security that Harry enjoyed was due to the consistency and predictability of his grandmother's care. He had begun to form his first significant peer relationships at nursery and a move away from this would be disruptive for him. AW concluded therefore that, while Harry's placement with GB was not perfect, on balance it should continue.
A sentence in the conclusion section of AW's report has proved to be somewhat controversial in the case. It was to this effect:
'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.'
The justices used the same formulation in the pro forma document that recorded the reasons for their decision. Incongruously, however, this appeared as the final paragraph in the section of the form that recorded findings of fact. It read:
'We have not found compelling reasons to disrupt [Harry's] continuity of care and the consistency and predictability that accompanies (sic) it.'
Plainly, this was a verbatim quotation from AW's report. It has been suggested that the justices fell into error in stating that they required compelling reasons to remove Harry from his grandmother's care. We do not accept that suggestion. In the first place, the justices did not say that they required compelling reasons – merely that they did not find such reasons. More importantly, taken as a whole, the pro forma that the justices prepared points unmistakably to their having conducted a careful weighing of the various factors that bore directly on what was in Harry's best interests. Thus, for instance, they reviewed his development while in the care of GB; noted that she had facilitated contact with both Harry's parents, even when his father was in prison; noted the risk of harm if he was moved; recorded that he had good relationships with both parents and his grandmother, all of whom were significant in his life; and expressly stated that they had balanced all interests in making their decision and had treated Harry's welfare as paramount.
We are satisfied, therefore, that the justices did not consider that compelling reasons were an essential prerequisite to any alteration of the status quo. It is perhaps unfortunate that the social care manager made the 'compelling reasons' reference and unfortunate too that it was incorporated by the justices in their statement of reasons but one should guard against an overly fastidious approach in parsing the contents of such statements. Isolated from its context, the phrase is redolent of an over-emphasis on the importance of continuing what had gone before but we have concluded that, on a fair reading of the entire statement, it can be confidently said that this did not happen.
The decision of Judge Richards
In para 21 of his judgment, Judge Richards acknowledged that the justices had taken all the evidence into account and that their recorded reasons betokened a very careful weighing of that...
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