Importance of Parenthood in Private Law Disputes: A Case Study on Residence & Contact, Apuntes de Derecho Comparado

¡Descarga Importance of Parenthood in Private Law Disputes: A Case Study on Residence & Contact y más Apuntes en PDF de Derecho Comparado solo en Docsity! Michaelmas Term [2009] UKSC 5 On appeal from: [2009] EWCA Civ 545 JUDGMENT In re B (A Child) (2009) (FC) before Lord Hope, Deputy President Lady Hale Lord Collins Lord Kerr Lord Clarke JUDGMENT GIVEN ON 19 November 2009 Heard on 14 October 2009 Appellant (GB) Respondent (RJB) Alison Ball QC Pamela Scriven QC Peter Horrocks Cherie Parnell (Instructed by Powleys) (Instructed by Allan Rutherford Solicitors) Respondent (GLB) In Person Page 4 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 10. 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. 11. 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.” 12. 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 Page 5 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. 13. 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.” 14. 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.” 15. 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. 16. 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 Page 6 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 17. 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 evidence. He concluded, however, that they had been “distracted by their consideration of the settled way in which [Harry] has been brought up.” (para 29) 18. The judge referred to the decision of In re G, (which had received a passing reference in the justices’ statement of reasons that we will consider later in this judgment). He suggested, at para 23, that the House of Lords had made clear in that case that “in the ordinary way … the rearing of a child by his or her biological parents can be expected to be in the child’s best interests, both in the short term and, more importantly, in the longer term”. For reasons that we shall give presently, we do not consider that this is a proper representation of the decision in In re G and we believe that it was the failure to properly understand the burden of the decision in that case that led the judge into error. 19. The theme that it was preferable for children to be raised by their biological parent or parents was developed by the judge in paras 24 and 25 of his judgment. He stated that it was the right of the child to be brought up in the home of his or her natural parent. (It is clear from the context that the judge was using the term ‘natural parent’ to mean ‘biological parent’.) We consider that this statement betrays a failure on the part of the judge to concentrate on the factor of overwhelming – indeed, paramount – importance which is, of course, the welfare of the child. To talk in terms of a child’s rights – as opposed to his or her best interests – diverts from the focus that the child’s welfare should occupy in the minds of those called on to make decisions as to their residence. 20. The distraction that discussion of rights rather than welfare can occasion is well illustrated in the latter part of Judge Richards’ judgment. In paras 28 and 30 he suggested that, provided the parenting that Harry’s father could provide was Page 9 As we shall see, the significance of Baroness Hale’s speech to the outcome of this case went far beyond this somewhat selective quotation. 27. In developing its first criticism of the justices’ approach the Court of Appeal suggested that there had not been a sufficient discussion of the respective roles of parents and grandparents in a child’s life. As a consequence, the court concluded that the justices had fallen into error in referring to the grandmother as Harry’s psychological parent while failing to acknowledge his father’s role beyond recording that he was capable of meeting Harry’s needs. 28. When considering the criticism that the justices had failed to – in the words of Wall LJ at para 24 – “grapple adequately with the fundamental issue in the case” - one must keep closely in mind that the context in which discussion of the respective roles of the father and the grandmother in Harry’s life should take place is how those roles and the manner in which the parent and grandparent fulfil them can conduce to the child’s welfare. Whether this particular criticism is justified depends, therefore, on the sufficiency of the justices’ consideration of the roles of the father and grandmother in terms of the contribution that they could make to Harry’s welfare. 29. The pro forma document that the justices prepared giving the reasons for their decision should not, we believe, be treated as containing an exhaustive record of all the material that was considered by them. From the note of the evidence given in the family proceedings court it is clear that the role that the father could play in Harry’s life and the care that he had provided in the past were comprehensively canvassed and debated. Both GB and AW were cross examined extensively about these issues and it is difficult to accept that the justices did not have them in mind in making the decision about residence. 30. It would perhaps have been preferable if the justices had placed on record that they had considered the role of his father in Harry’s life but it is not easy to see what they might have said beyond that. They had commented that RJB had helped with Harry’s care in the past and had expressed himself willing to do so again; they acknowledged that he was capable of meeting Harry’s needs; and they accepted that Harry had enjoyed a good relationship with his father. It is clear that they were alert to the role that he had played in this young boy’s life. We cannot therefore agree that they failed to grapple with the respective roles of father and grandmother. Page 10 31. The second “important error of law” identified by the Court of Appeal was the justices’ statement in relation to compelling reasons. Wall LJ said this about that statement: “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.” 32. As we have pointed out at [14] above, the justices did not say that they required such reasons, merely that they had not found them. When one examines the statement of reasons as a whole and has in mind that this was a direct quotation from AW’s report, it is not difficult to reach the conclusion that the justices did not regard this as an essential pre-condition to Harry’s residence being transferred to his father. We find it impossible to agree with the judgment of the Court of Appeal that this statement betokened an over emphasis by the justices on preserving the status quo. In re G 33. The Court of Appeal acknowledged that In re G had given the final quietus to the notion that parental rights have any part to play in the assessment of where the best interests of a child lay. Indeed, (correctly in our view) it identified this as the principal message provided by the case. It is certainly the principal message that was pertinent to the present case. It appears, however, that the urgency of that message has been blunted somewhat by reference to the speech of Lord Nicholls and some misunderstanding of the opinion that he expressed. Having agreed that the appeal should be allowed for the reasons to be given by Baroness Hale, Lord Nicholls said at para 2: Page 11 “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.” 34. As we have observed, it appears to have been in reliance on the latter passage that the justices stated that a child should not be removed from the primary care of biological parents. A careful reading of what Lord Nicholls actually said reveals, of course, that he did not propound any general rule to that effect. For a proper understanding of the view that he expressed, it is important at the outset to recognise that Lord Nicholls’ comment about the rearing of a child by a biological parent is set firmly in the context of the child’s welfare. This he identified as “the court's paramount consideration”. It must be the dominant and overriding factor that ultimately determines disputes about residence and contact and there can be no dilution of its importance by reference to extraneous matters. 35. When Lord Nicholls said that courts should keep in mind that the interests of a child will normally be best served by being reared by his or her biological parent, he was doing no more than reflecting common experience that, in general, children tend to thrive when brought up by parents to whom they have been born. He was careful to qualify his statement, however, by the words “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” (emphasis added). In the ordinary way one can expect Page 14 Harry’s residence. Nor do they detract from their important recognition that his welfare was the paramount consideration in that determination. 39. It follows that Judge Richards erred in his conclusion that it was open to him to reverse the justices’ findings. The judge was correct in his view that G v G [1985] 1 WLR 647 forbade interference with the exercise of the justices’ discretion unless the decision was plainly wrong. Where he fell into error was in deciding that his analysis of their statement of reasons supported his conclusion that it was so. 40. The Court of Appeal recognised some of the deficiencies in the judge’s analysis, in particular his apparent application of the principles relevant only in public law cases to private law proceedings under the 1989 Act; his pronouncement of something which came close to a presumption that a child should live with his biological parent or parents; and of the relevance of the concept of ‘good enough’ parenting in this case. But the court considered that it could overlook these shortcomings because “the judge’s fundamental [approach] was not plainly wrong” (para 62). This in turn depended on their acceptance of the judge’s conclusion that the justices’ decision was plainly wrong. Since we have concluded that it was not, the basis on which the Court of Appeal felt able to uphold Judge Richards’ decision falls away. 41. As we have said earlier, many disputes about residence and contact do not follow the ordinary way. This case is one such. Harry has lived virtually all of his young life with his grandmother. He has naturally formed a strong bond with her. There is reason to apprehend that, if that bond is broken, his current stability will be threatened. Harry’s father had undergone significant changes in his own domestic arrangements at the time that the justices made their decision. While he was assessed as capable of meeting Harry’s needs, those arrangements remained untested at the time the justices had to determine where Harry should live. There was therefore ample material available to the justices to reach the determination they did. That determination lay comfortably within the range of the decisions that the justices, in the exercise of their discretion, could reasonably make. For these reasons we allowed the appeal. 42. What we heard of the contact and residence arrangements made as a result of the conditions imposed by the Court of Appeal’s order granting a stay confirmed the view that considerable disruption to Harry’s life would have been involved in a transfer to live with his father. The distance between the homes of his Page 15 grandmother and his father exceeds thirty miles, we were told. It seems inevitable that, if he were to live with his father, he would no longer be able to attend the nursery where he has already made good progress. Transfer of his residence would involve a great deal more than a change of address. Many of the familiar aspects of his life which anchor his stability and sense of security would be changed. The justices were therefore right to give significant weight to the desirability of preserving the status quo. This is a factor which will not always command the importance that must be attached to it in the present case but we are satisfied that it was of considerable significance in the debate as to where this child’s best interests lay. 43. For that reason, it is perhaps regrettable that such a radical change to Harry’s residence and contact arrangements came about as a result of the conditions imposed by the Court of Appeal. Conscious of the need to minimise the sense of bewilderment that can accompany abrupt and substantial changes to a child’s living arrangements, we made a transitional order that provided for a phased return to those that were in place before. We consider that, as a general rule, conditions such as were imposed by the Court of Appeal in this case should not be made where a party seeks permission to appeal, not least because these might be seen as an unwarranted disincentive to the pursuit of what proved in this case to be a fully merited application.