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This is the second of two appeals in children cases which will be heard by the Supreme Court in its second week.  At the heart of the case is a question grappled with every day by family courts all over the country: what priority, if any, should be given to the fact of natural (which usually means genetic) parenthood when deciding issues of residence?

In the public law context the principles are clearly articulated: even just ‘good enough’ parenting by a natural parent is generally to be preferred to a home with strangers and a childhood in local authority care. However, in private law cases the balance is a more difficult and sensitive one. The courts have generally shied away from creating a presumption that a home with a natural parent is in a child’s best interests, although they have certainly come close: see Re G [2006] UKHL 43 (where a lesbian couple raised two children who necessarily were the genetic and gestational children of only one of them) and Re R [2009] EWCA Civ 358.

This case concerns the competing claims of a grandmother, with whom the child (now rising 6) had lived since birth; and a natural father, who had put a chaotic lifestyle, including a substantial period of imprisonment, behind him, married and ‘settled down.’ The Family Proceedings Court, which initially heard the case in March, preferred the child’s settled home with the grandmother to a move to the father’s care. In April HHJ Richards, sitting as a Judge of the High Court, allowed the father’s appeal and reversed the justices’ decision, holding that they had erred in law in giving insufficient weight to the fact of the father’s biological parenthood, a factor to which they were bound by Re G to give serious consideration. In June the Court of Appeal (Wall and Elias LJJ), hearing the case as a second appeal, upheld the Judge.

A subsidiary issue dealt with in the Court of Appeal is whether there is any difference in the approach to be taken to a second appeal where there is a conflict between the two decisions below (as here), as against a second appeal where the two decisions below are in harmony. The Court of Appeal decided that there is no difference: the statute (Access to Justice Act 1999, s 55(1)) does not create one; and they gave the grandmother permission to appeal only on the grounds set out in section 55(1)(a).

The Supreme Court, which hears the grandmother’s appeal on 14 October, will have to weigh up the ‘status quo’ arguments put forward by the grandmother against the father’s ‘natural parenthood’ argument. It may also perhaps be tempted into considering the relative weight to be given to degrees of biological kinship: is a grandmother, with whom the child shares 25% of his genes, in a stronger position than a stepparent or former partner, like the one in Re G, who is a genetic stranger but may nevertheless have played the role of a psychological parent to the full? If so, what about a cousin, or an aunt? That way lie the difficult questions about the position of adoptive parents, and of children born following IVF treatment using donor gametes (arguments raised by the Court of Appeal in Re G but given a wide birth in that case by the House of Lords.)

From the Supreme Court we can expect a reinforcement of the welfare checklist (Children Act 1989, section 1) as the first point of reference in all cases where residence is in issue. Beyond that, any gloss that the Court is prepared to impose on the checklist in this area will have widespread and resounding implications.

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’.

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