Re H (A Child) (Residence)
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Year | 2002 |
| Date | 2002 |
| Court | Court of Appeal (Civil Division) |
Residence order – Application to vary – Residence order in favour of grandmother – Mother applying to vary order – Judge dismissing application – Whether presumption of residence in favour of mother – Whether burden on mother to show change of circumstances – Whether judge erred in his approach – Children Act 1989, s 1.
The mother had given birth to a child in 1992. An arrangement was come to in 1994 whereby the maternal grandmother would care for the child, and in 1996, a residence order was made in favour of the grandmother. In 1999, the mother made assertions both to the relevant local authority and to the police that from a young age she had been physically abused by the grandmother, and sexually abused by the grandmother’s husband. Shortly after making those allegations, the mother applied to vary the residence order. That application fell within s 1(4)(a) of the Children Act 1989. Whilst the parties had agreed that the allegations of past abuse in regard of the mother would not be dealt with, it became difficult to avoid them entirely in the course of the application. The judge found, inter alia, that the mother had difficulty delineating the boundary between fact and fiction, and that she had shown a marked lack of commitment and responsibility in relation to the child’s school life. In contrast, he found that the grandmother had been credible, had shown a real understanding of the child’s needs, and that the child had been extremely well cared for by the grandmother and her husband. The judge went on to hold that the 1996 order would not be varied. The mother appealed, effectively on two grounds: (i) that the judge had erred in that he had ignored the presumption, which she alleged existed, in favour of residence with the natural parent; and (ii) that the judge had erred in law in that he had placed a burden on the mother to establish some relevant change in circumstance.
Held – (1) In cases of the instant type, the guiding star for the court was the welfare of the child, which was the paramountcy test contained in s 1(1) of the 1989 Act. There was no presumption in favour of the natural parent to be found anywhere in the 1989 Act, and any judicial overlay of the words of the statute had to be treated with caution. In any event, the biological parent might not always be the natural parent in the eyes of the child, and in cases where the child had been for a long time in the settled care of a non-parent, that non-parent would effectively have become the child’s psychological parent. When weighing the rival claims of the biological parent over the psychological parent, the court had to arrive at its choice on the application of the welfare test, and while the court had properly to pay regard to parental
rights, such considerations had to be qualified by what was best for the welfare of the child.
(2) It was a sound rule of practice that where in year one a court decided that certain arrangements for the future care of a child which it was about to sanction were most likely to promote welfare, then the court would not arrive at a different conclusion in year two without some fairly fundamental change of circumstance in the interim. Nevertheless, that rule was not a rule of law, merely one of practice, and it was a mistake to elevate it to the status of a rule of law. The judge in the instant case had not, however, fallen into the error of raising that rule of practice to a rule of law, and had approached the matter correctly.
Accordingly, the judge had been entitled to hold that the order would not be varied and the appeal would be dismissed.
Cases referred to in judgmentsD (care: natural parent presumption), Re[1999] 2 FCR 118, [1999] 1 FLR 134, CA.
H (a minor) (interim custody), Re [1991] FCR 985, CA.
J v C [1970] AC 668, [1969] 1 All ER 788, [1969] 2 WLR 540, HL.
KD (a minor) (ward: termination of access), Re [1988] FCR 657, [1988] AC 806, [1988] 1 All ER 577, [1988] 2 WLR 398; sub nom Re KD (a minor) (access: principles) [1988] 2 FLR 139, HL.
P (a child) (residence order: child’s welfare), Re[1999] 2 FCR 289, [2000] Fam 15, [1999] 3 All ER 734, [1999] 3 WLR 1164, [1999] 2 FLR 573, CA.
W (a minor) (residence order), Re[1993] 2 FCR 589, [1993] 2 FLR 625, CA.
AppealThe mother appealed against an order of Nicholas Mostyn QC sitting as a deputy judge of the county court on 8 June 2000, whereby he dismissed an application by the mother to vary a residence order in relation to her child made in 1996 in favour of the maternal grandmother. The facts are set out in the judgment of Thorpe LJ.
David Bedingfield for the applicant.
Janet Plange for the first respondent.
The second respondent appeared on his own behalf.
ALDOUS LJ.1. I will ask Thorpe LJ to give the first judgment.
THORPE LJ.2. This morning permission to appeal was granted to De to appeal the order of Mr Nicholas Mostyn QC sitting as a deputy judge of the county court on 8 June 2000. He had before him an application by De to vary a residence order made in 1996 in favour of her own mother, Da, in relation to her child, A, born on 7 April 1992.
3. The composition of the family was sufficiently complicated to justify the judge incorporating into his judgment a genogram that had been prepared by the social worker who gave expert evidence. That reveals that Da, who is 52 years of age, had three children by a previous relationship with a Mr R. De is one of those three. However, Da married GH in 1973. GH had three children by his previous wife, then deceased, and those three children were all much of an age with the three children born to Da. So all six were brought up as children of the H household. In addition, one child was born of the marriage, N, who is now aged 23. So within the generation of children of Da and G there are seven. De had a relationship with BR between 1990 and 1994, and it is of that relationship that A was born.
4. The residence order made on 25 September 1996 reflected a good deal of disturbance in De’s life. During the preparation of proceedings that preceded the consent order of 25 September, De had said in her statements:
‘I think my mother looks after [A] well and that [A] is very well cared for. I appreciate that it is not good to disrupt [A’s] life now that she is used to living with my mother.’
5. That arrangement, whereby A was cared for by Da, had had its inception in February 1994.
6. The proceedings before the judge commenced with the issue of the mother’s application dated 13 September 1999. Shortly before its issue, the mother had raised assertions to both the relevant local authority, and also to the police, that over the course of approximately a decade, from her age of four, she had been sexually abused by GH and also physically abused by Da. Those allegations therefore figured large in the preparation of her application for variation. During the interlocutory stages the district judge entered as...
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