The Supreme Court has now delivered judgment in Re B [2009] UKSC 5, the case concerning the competing claims of a father and a grandmother for a residence order. The child concerned, aged nearly 4, had spent all of his life in the primary care of his maternal grandmother, in whose favour a residence order was made, by consent, in 2006. That order was challenged in early 2009 by the child’s father, who in the intervening years had modified his lifestyle to the extent that it was accepted that he was in a position to provide the child with a suitable home. His application for residence was supported, at least in the courts below, by the child’s mother. The grandmother opposed any change in residence, primarily on the basis that the child was settled in his home with her and to move him would have a detrimental effect on his welfare.

The Family Proceedings Court refused the father’s application and confirmed the child’s residence with his grandmother. That order was successfully appealed to HHJ Richards sitting as a deputy High Court Judge, and the Court of Appeal subsequently upheld Judge Richards’ decision. The Supreme Court has now allowed the grandmother’s appeal and restored the Family Proceedings Court’s original order.

In the High Court and Court of Appeal discussion centred on whether or not the case of Re G (Children) (Residence) (Same Sex Partner) [2006] UKHL 43 had the effect of giving any special weight to the fact of biological parenthood when considering a residence dispute between a parent and a non-parent. The Supreme Court has ruled very firmly that it did not have that effect, and any perception that it did has arisen as a result of a misinterpretation of Re G, in the present case particularly as a result of selective quotation of passages from the speeches of Baroness Hale and Lord Nicholls without sufficient regard to the overall import.

Lord Kerr, giving the judgment of the court, has re-affirmed very clearly the principle that it is the welfare principle and welfare checklist, without any gloss, that must inform the court’s consideration of the issues in any residence dispute. The Supreme Court has found that both Judge Richards and the Court of Appeal fell into error in two main respects. The first was where it was suggested that there is any principle within the area of private law that it may be preferable or desirable for a child to live with a biological parent, or any such gloss on the welfare checklist. In particular, it is quite wrong to suggest – as Judge Richards did in the High Court, although the Court of Appeal treated this suggestion with caution – that provided the care offered by the biological parent is ‘good enough’, it is of no consequence that the care provided by the non-parent may be better. The second was to articulate this principle, as it was articulated in the High Court, in terms of the child’s ‘right’ to be brought up, if possible, in the home of a natural parent. The Supreme Court has commented that ‘to talk in terms of a child’ 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.’ So much for Article 8 – in this particular context at least. .

On behalf of the father it was argued that the justices had fallen into error when they said – quoting a passage from a report prepared by social services – that they had ‘not found compelling reasons to disrupt [the child’s] continuity of care and the consistency and predictability that accompanies it.’ The Supreme Court agreed that if the Family Proceedings Court had found that ‘compelling reasons’ were required in any case where it was proposed that the status quo should be disrupted, that would have been a mis-statement of the law. However, a wide reading of the justices’ reasons indicated that they had in fact considered carefully the various factors that bore directly on what was in the child’s best interests, had balanced those factors and, most importantly, treated the child’s welfare as paramount. That was the task set for them by the statute and this being the case it could not be shown that the decision was plainly wrong.

The Supreme Court has dealt with Re G in a way that at the same time reaffirms that case’s centrality to disputes involving non-genetic parent figures and removes any suggestion that Re G contains generally applicable guidance. The main message of Re G, according to the Supreme Court, is that it removes finally any suggestion that parental rights have any part to play in the assessment of welfare in private law cases. That message has, however, been ‘blunted’ by an over-reliance on the following passage in the speech of Lord Nicholls (who did not, incidentally, sit in the Re B appeal):

‘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.’

As the Supreme Court points out, Lord Nicholls himself made that comment having expressed himself as being in agreement with Baroness Hale, with whom the rest of their Lordships also agreed. In those circumstances to select that passage without paying attention to the overall gist particularly of Baroness Hale’s speech is not permissible. ‘In the ordinary way’ does not mean, in the overall context of Re G, that there is any general rule.

As for giving alternative guidance to those who in the future are faced with a residence application involving a similar choice – between a genetic parent and a more distant family member, or between a parent and a (genetic) stranger – the Supreme Court has firmly declined to do so. The furthest Lord Kerr goes is to say 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.’ (para 28).

In the case preview prepared for this blog before the judgment, we wondered whether the Court might succumb to the temptation to prioritise varying degrees of genetic and psychological relationship: do you have a better chance in a residence dispute against a biological parent if you are an unrelated step parent, or a distantly related aunt? The Supreme Court has given both no answer, and the only answer. Welfare is the pole star: if you can argue that, in your particular case, the nature of your relationship (genetic or other) bears directly on the child’s welfare, it is relevant. If not, no matter what arguments might be brought to bear in the wider context or perhaps in the public law arena, within a private law dispute there are no such arguments to be made.

Madeleine Reardon practices in all areas of family law at 1KBW.  She has a particular interest in both public and private law children work. She is an update editor of Hershman and McFarlane: Children Law and Practice’.