B (A Child), Re

This is the judgment of the court, to which both of its members have contributed.

We heard this case on 21 May, pursuant to an order made by Wilson LJ on 24 April 2009 that it was to be listed before a three judge court as an application for permission to appeal with the appeal to follow if permission was granted. At the outset of the argument we invited Mr Peter Horrocks, for the applicant, to advance his arguments as though for a substantive appeal, and at its conclusion, we announced our decision, but reserved our reasons. We granted permission to appeal, but dismissed the substantive appeal. We made various ancillary orders designed to give effect to our decision, and refused a prospective application by Mr. Horrocks for permission to appeal to the House of Lords.

In our judgment, this case raises a number of points of interest for the profession relating: (1) to second appeals in children’s cases; and (2) to the application of the welfare test under section 1 of the Children Act 1989 (the 1989 Act) to a case involving a residence dispute between the father and the maternal grandmother of a child.

We do not think that it is in the interests of the child concerned to be identified. We accordingly impose reporting restrictions. This judgment is being written anonymously, and nothing must be published which in any way identifies the child. In the interests of the child’s anonymity, we propose to identify him only by an initial, and the other relevant parties by reference to their relationship with him.

The maternal grandmother of H, a boy born on 12 December 2003, appeals against an order made by His Honour Judge Richards sitting as a judge of the High Court in Norwich on 3 April 2009. The judge was hearing an appeal from the family proceedings court, which had refused the father’s application for residence and had made an order that H continue to reside with his maternal grandmother. The justices made contact orders in favour of both of H’s parents. On appeal, the judge reversed that decision, and directed that H should reside with his father with effect from 25 April 2009. The judge made orders for staying contact with the father in the interim, and refused both a stay and permission to the grandmother to appeal. The judge’s order was subsequently stayed by Wilson LJ pending the determination of the grandmother’s application for permission to appeal.

H’s father, mother and grandmother were all represented before the justices. Before the judge and in this court, only the father and the grandmother were legally represented. The mother, who appeared in person before us, was not in a position to care for H, and supported the father’s application.

It will be immediately apparent that this is a second appeal (albeit a first appeal by the grandmother, who succeeded before the justices) to which the provisions of section 55(1) of the 1999 Act and Rule 52.13 of the Civil Procedure Rules (CPR) apply.

Section 55(1) of the 1999 Act reads as follows: -

These provisions are replicated in CPR 52.13, which we do not need to reproduce. They are to be contrasted with the criteria for first appeals, which are contained in CPR 52.3(6). This reads: -

So how does section 55(1) fall to be applied when a circuit judge (in this instance sitting as a judge of the High Court) allows an appeal from justices under section 94 of the 1989 Act? Plainly, the application for permission to appeal, and the appeal itself (the latter being governed by G v G [1985]1 WLR, 647) is from the circuit judge. It is his decision which we are required to review. If his decision is arguably plainly wrong, is that a compelling reason to hear the appeal in the absence of any important point of principle or practice, as Mr. Horrocks urges?

Both principle and authority demonstrate that it is not. In Tanfern Ltd v Cameron MacDonald (Practice Note) [2000] 1 WLR 1311 paras 41-46 the Court of Appeal emphasised when giving guidance about second appeals in civil cases in private law matters (but not including family cases) that even if this court takes the view that a second appeal is properly arguable or has a real prospect of success, that does not provide a justification for hearing it. The purpose behind section 55(1) of the 1999 Act and CPR 52.13 is that, in general, there should only be one appeal from any given decision. Were either arguability or even a strong prospect of success to constitute a compelling reason for a second appeal, there would be no difference between first and second appeals, and the Statute would be deprived of its meaning and effect. In our judgment that must equally be so in family appeals. The strength of the case does not of itself provide a compelling reason to hear an appeal.

When listing the matter before us, Wilson LJ commented: “second appeals may have a different colour when the proposed appellant in this court prevailed in the court of trial”. We understand the thinking behind this comment: on the face of it, there is a stronger case for a second appeal where the earlier rulings are in conflict than where they are in harmony. However, the Statute itself draws no such distinction.

In the event, however, we take the view that this case does raise an important point of principle, namely the inter-relationship between the roles of a parent and a grandparent in the welfare equation identified by section 1 of the 1989 Act. For that reason, we granted permission to appeal.

It may also be the case – we did not hear argument on the point and have reached no concluded view – that the effect of a decision relating to the welfare or future upbringing of a child may itself constitute a compelling reason for hearing a second appeal. The importance of such decisions for the children and adults concerned cannot be over-emphasised. Moreover, the fact that two courts have reached different conclusions may (a word we emphasise) reinforce the justification for hearing the appeal.

Against this background, we turn to examine the facts of the particular case, which we can extract from the agreed summary of the background placed before the judge. H has lived with his maternal grandmother throughout his short life. Initially, his mother lived with them. In June 2006, however, H’s mother obtained her own accommodation, and on 9 November 2006, when H was nearly 11 months old, the grandmother obtained a residence order in the local family proceedings court in relation to him.

The order which gave the grandmother residence of H also gave the father parental responsibility and contact. The father enjoyed regular contact with H up until July 2007, when he was sentenced to a term of 18 months imprisonment for a racially aggravated assault. It seems that the grandmother brought H to see his father in prison on a number of occasions. The father was released in March 2008 and resumed contact with H, seeing him each weekend from 5.00pm on Friday to 5.00pm on Saturday.

On 20 August 2007, the mother issued an application to the justices seeking residence of H or contact with him. She raised a number of issues about the grandmother’s care of H, and a CAFCASS report was ordered. However, she obtained permission to withdraw the application prior to the preparation of the report.

The mother issued a fresh application before the justices on 28 May 2008, and on 11 June 2008 the family proceedings court made an interim contact order in the mother’s favour whereby the mother saw H each Wednesday evening between 3.45pm and 7.00pm and had staying contact with him each weekend from 5.00pm on Saturday until 5.00pm on Sunday. This, we understand, is the arrangement which persists today. It is thus apparent that whilst H lives with his grandmother during the week, his weekend are, effectively, divided between his parents.

As a result of concerns raised both by the mother and the father, a report under section 7 of the 1989 Act was ordered for the final hearing before the justices, which took place on 6 March 2009. At that hearing, the mother did not pursue her application for residence, but supported the application made by the father, who by that date had married and, on his case, settled down.

It is not our function in this appeal to become embroiled in the merits. Our function is to decide whether or not the judge was right to reverse the justices’ decision. As the justices aptly put it in their findings of fact: “All significant adults in (H’s) life have issues in their past as in their statements”. In the lawyers’ phrase, none is unimpeachable. We are, moreover, acutely conscious of the fact that, once this case is over, and whatever the ultimate decision, all three of the principal adults in H’s life will remain in close contact with each other, and we are anxious not to exacerbate any negative feelings which may have resulted from the adversarial nature of the proceedings. This is a point to which we shall revert, briefly, at the end of this judgment.

We start from the premises that, as the justices found, both H’s grandmother and his father could meet his needs. That was also the view of the section 7 reporter, who when asked questions by the bench is recorded as having replied:-

So, did the justices make an error of law sufficient to entitle the judge to overrule their decision? We think, with all respect to them, that they did. We identify it by juxtaposing two paragraphs of their findings of fact:-

We think it unfortunate that the justices refer to the decision of the Court of Appeal in Re G, given that this court’s decision was reversed by the House of Lords. We do not, however, base our decision on this point, which does not appear to have been noticed either by the judge or by any of the lawyers.

We do, however, think that the justices have in fact made two important errors of law. Firstly, we do not think that paragraph 14 of the justices’ reasons (which they do not expand upon elsewhere) is an adequate discussion of the respective roles of parents and grandparents in a child’s life. To put the matter another way, we do not think that the justices have grappled adequately with the fundamental issue in the case, namely the respective roles of grandmother and natural parent in H’s life.

Secondly, 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 H’s welfare was their paramount consideration, the question which they had to decide was whether or not it was in H’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 H’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.

Mr. Horrocks invited us to hold that the justices’ reasons were impeccable, and had all the virtues of brevity. It is, of course, the case that the justices’ reasons followed a well established pattern. We appreciate that this is not an appeal from the justices’ decision. However, we think we should point out that if, as a matter of policy, longer and more complex cases are now being devolved down to, or remain in the family proceedings court, justices may have to explain their reasoning in slightly fuller terms. This is not an invitation to prolixity: brevity and conciseness are virtues to be encouraged. At the same time, we appreciate that justices are not lawyers and that three people writing reasons under pressure of time is not an easy task.

Before turning to the judge’s treatment of the question, we propose to examine the law as we understand it to be. Re G is undoubtedly the latest authority on the fact of parentage and the role of the parent in a child’s life. At the same time, it is a highly unusual case on its facts. A lesbian couple had two children together by means of one of them being inseminated by an unknown donor. The two women lived together - as a family - with the children and a son who had been born to the non-birth mother of the children concerned. When they split up, the birth mother undoubtedly behaved very badly. She removed the children from Leicester to Cornwall, without informing the non-birth mother and contrary both to the clear views of the CAFCASS officer and the order of the judge.

The judge (Bracewell J) had given the care of the two children to the non-birth mother, and had directed that they continue to reside in the Leicester area. Her decision was upheld by this court which rejected the birth mother’s argument that there should be cogent reasons for a court to prefer the claims of a person who was not the natural parent over those of the natural parent. The House of Lords reversed this court’s decision.

As will be immediately apparent, the facts are very different from those in the instant case. However, the House of Lords in Re G underlined some basic and universal propositions. Although we propose to cite extensively from the speeches in Re G we take the view, without any disrespect to their Lordships, that its principal message is a pertinent reminder that parental “rights” in this context have no role to play: the welfare of the child in question is the court’s paramount consideration in every case, even if the decision bears hard on the child’s parents.

We begin our citations from Re G with the short speech of Lord Nicholls of Birkenhead, who agreed that the appeal should be allowed for the reasons given by Baroness Hale of Richmond, who gave the leading speech. In the only substantive paragraph of his speech, Lord Nicholls went on to say: -

Lord Scott of Foscote found himself “so completely in agreement” with Baroness Hale’s conclusion and her reasons for reaching it, that an opinion from him “would be otiose. However, he went on:-

Baroness Hale of Richmond begins her speech by stating that notwithstanding the novel factual context (a lesbian couple and children born by anonymous insemination by donor) the legal principles are the same as those which apply to a dispute over children between a heterosexual couple. She then adds:-

Fortunately, the second issue does not arise in the instant case. After setting out the facts and the decision at first instance, Baroness Hale cites and comments upon a passage from the judgment in this court of Hallett LJ, whom she describes as agreeing to the decision of this court “only with a degree of hesitation”. Hallett LJ had said:-

Baroness Hale then comments:-

It is against this background that Baroness Hale turns to examine the interrelationship between the welfare principle and the role of the natural parent. After a scholarly analysis of the statute and the authorities which pre-date the 1989 Act, Baroness Hales cites an extract from the Law Commission’s Working Paper No 96 (HMSO 1986) which plainly embodies the meaning and effect of the 1989 Act:-

In the same paragraph, she continues:-

This is the background against which Baroness Hale asks the question: “So what is the significance of the fact of parenthood?” She identifies “at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child's welfare, depending upon the circumstances of the particular case”. These are “genetic parenthood”, “gestational parenthood” and “social and psychological parenthood”. She comments that in the great majority of cases, the natural mother of a child combines all three.

Having identified and described each type of parenthood, Baroness Hale reaches her conclusion:-

We have cited extensively from Re G (albeit not from the passages relied upon by counsel) for three particular reasons. The first is that it was referred to by the justices and features substantially in the argument before us. The second is because its facts are far removed from the instant case.

The third reason, however, is we think by far the most important. It is that in our judgment what Baroness Hale (and the House of Lords) is doing – and it is a very valuable exercise – is reminding practitioners and judges that the test under section 1 of the 1989 Act is welfare alone, and that it is wrong to talk in terms of “rights” (save, perhaps as identified in ECHR). Furthermore, she is making the point that whereas parenthood can take a variety of forms, it is an important constituent to weigh in the welfare equation. In the opinion of the House of Lords in Re G itself, insufficient weight in the welfare equation had been given to the fact that the birth mother was being deprived of a residence order in her favour.

In this context it may be that Wall LJ went too far in Re R [2009] EWCA Civ 358 at paragraph 116 when he criticised the judge in that case for failing to grapple with the fundamental proposition that “children have a right to be brought up by their natural parents unless their welfare positively demands the replacement of that right”, albeit that in that case the question was whether or not the child should be removed from his mother’s care, and a residence order made in favour of his grandparents.

On our analysis, moreover, it is not difficult to see how the justices have fallen into error. On the basis, as found by the justices, that the grandmother is H’s psychological parent, there is no discussion by the justices of his father’s role in H’s life, beyond the conclusion, under section 1(3)(f) of the checklist that both H’s grandmother and father “can meet his needs”.

In our judgment, therefore, and as we have already stated, the justices did commit an error of law, and the judge was fully entitled to review their decision.

Cases involving grandparents are no exception to the principles which, as Baroness Hale states, are of universal application. H’s welfare is the paramount consideration. But the fact that the residence dispute is between his father and his grandmother is plainly relevant.

In this context it is, we think, worthwhile pointing out that grandparents do not enjoy the same status as parents under the 1989 Act. Pursuant to section 10(1) of the 1989 Act: the court may make a section 8 order (for present purposes residence or contact) if -

Pursuant to section 10(4), a parent of the child is entitled as of right to make such an application: a grandparent normally requires leave. The grandmother in the instant case did not require leave to apply for a residence order in March 2009: (a) because she already had a residence order, and thus parental responsibility for H: and, (b) because H had been living with her for three years: - see section 10(4)(aa) and 10(5)(b) of the 1989 Act. She would, however, have required leave to obtain the residence order dated 9 November 2006.

In our judgment, the difference in treatment between parents and grandparents identified in the 1989 Act is of a piece with the general proposition enunciated by Lord Nicholls in the paragraph from his speech in Re G which we have set out above. It is, furthermore, we think consistent with the earlier cases cited by Baroness Hale of Richmond, with the important distinction that it is no longer appropriate, in this context, to talk of a parental right to bring up a child, or the right of a child to be brought up by a birth parent. The sole test is welfare. But the fact of parenthood is important in the welfare equation.

There will, of course, be private law cases in which it is in the interests of particular children to be brought up by a grandparent or grandparents, or indeed by strangers: see in this regard the seminal decision of J v C [1970] AC 668. Re P (A Minor: Residence Order: Child’s Welfare) [2000] P. 15, in which the child was Down Syndrome and thus incapable of understanding the reasons for removing her from caring third parties to the care of her entirely suitable parents is a modern example of a case in which it was not in the child’s interests to live with her parents.

Most of the cases involving grandparents have arisen either in the context of contact or in the context of an application by a grandparent for leave to apply for a section 8 order: - see Rayden & Jackson on Divorce and Family Matters, 18^th edition 2005, volume 1(2) paragraph 39.71 note 4, and the cases there cited. Nothing in those authorities, however, derogates from the general proposition that applications by parents and grandparents are treated differently by the 1989 Act.

However, we think it worthwhile pointing out that Re H (A Minor) (Custody, Interim Care and Control) [1991] 2 FLR 109 (Re H) and Re W (A Minor) (Residence Order) [1993 2 FLR 624 (Re W) (both decisions of this court and both cited by Baroness Hale of Richmond in Re G) were “grandparent” cases. It is also noteworthy that, in the latter, Balcombe LJ cited with approval the decision of Lord Donaldson MR in the former, in which Lord Donaldson had stated:-

It was, of course, the use of the word “rights” in Re K which provoked the controversy, now laid to rest by Re G. There is, however, nothing in the authorities to suggest that either Re H or Re W was wrongly decided, or that what Lord Donaldson MR said in Re W was wrong.

In paragraph 11 of his judgment, the judge stated: -

That, we think, is an immaculate self-direction.

After a discussion of the merits and the arguments advanced to him, the judge comments that the justices had what he describes as a “very difficult decision”. He pays tribute to the careful way in which the justices dealt with the case, and to the fact that they took account of all the evidence. Those are sentiments we echo.

The judge then considers Re G, and records its reasoning as being “that the court should always have in mind, in the ordinary way, that 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, importantly, in the long term.” The judge then goes on:-

The judge the goes on to consider the facts in Re W before continuing:-

Having both praised the grandmother and identified some of the criticisms of her case, the judge comments that her care of H has been more than “good enough” and adds:-

In what seems to us, however, as the core of his reasoning, the judge adds:-

In our judgment, there are aspects of this analysis which are unsatisfactory. In paragraph 24 there is a plain confusion on the part of the judge between the principles appertaining in public as opposed to private law proceedings under the 1989 Act. The citation is plainly the judge’s recollection of the famous speech of Lord Templeman in KD (a minor) (ward: termination of access) [1988] AC 806 (Re KD), in which Lord Templeman compared the position in England at common law and in statute with ECHR Article 8. Re KD, however, was decided in the days when local authorities could take and be granted care orders in wardship proceedings, and the context of Re KD was a local authority’s wish to terminate parental contact (something now enshrined in section 34 of the 1989 Act). It is for this reason that the passage cited by the judge contains the words: “Public authorities cannot improve on nature.”

Secondly, in paragraph 29 of the judgment, the judge comes close to saying that there is a presumption that a child will live with his biological parent or parents – something which is plainly inconsistent with Re G.

Thirdly, whilst we did not hear full argument on the point, we have to doubt, as a matter of principle, whether or not “good enough” parenting by a natural parent is necessarily more in a child’s best interests than first rate parenting by a grandmother. Whilst it is very clear that the courts must beware of what has been described as “social engineering”, this concept of “good enough” parenting has – so far as we are aware – always been advanced in the context of public law proceedings and of care within the wider family as opposed to care by strangers: see, for example, the judgment of Butler-Sloss LJ (as she then was) inRe O (a minor) (custody or adoption) [1992] 1 FCR 378.

So, why are we dismissing the appeal rather than remitting it for re-hearing? The answer is that in our judgment, the judge’s fundamental approach is not plainly wrong. The judge has decided that on the evidence before him, the interests of this child are best served by him living with his father. We agree with the judge that the justices erred in law in the manner identified in paragraph 27 of his judgment. The way was thus open to the judge to exercise his own discretion. What we understand him to be saying is that whilst it is not an immutable principle that children should live with their natural parents (or one of them, if the parents are not living together) it is in H’s interests to live with his father. H’s father can care for him and there is nothing in the case to gainsay the general proposition that children – all other things being equal – should live and be brought up by a natural parent. Certainly, in the judge’s view, it is in the interests of “this child” (the phrase used by the judge in paragraph 29) to do so.

We would not wish it to be thought that we had overlook the additional points which Mr. Horrocks made on behalf of the grandmother. There is the status quo; there is the argument that the grandmother is H’s psychological parent; there are the faults in the father identified in the evidence; there is the evidence of the section 7 reporter and the fact that the judge did not expressly explain why he was taking a different view from the reporter. There was also the point that neither the justices nor the judge saw or heard from the father’s wife.

These are all good points, if we may so describe them without appearing patronising. However, in our judgment, they all go to the exercise of the same broad discretion enjoyed by the justices and all tribunals hearing private law cases under the 1989 Act, and that the judge had them all well in mind. It is, we think, clear why the judge disagreed with the section 7 reporter, and whilst it is true that the latter’s recommendation did not change, his oral evidence, in our judgment, qualified his report in material respects. Status quo versus parental care was at the heart of the case, and the judge decided this issue of principle, for this child, in favour of the latter. Not hearing the father’s wife pales into insignificance when it is accepted by the section 7 reporter that the father and his wife can provide H with appropriate care.

As with many appeals from the county court, the judge could have expressed himself differently. We remind ourselves of the heavy burden on circuit judges, that this was an extempore judgment, and that Wall LJ, even over a period of reservation, still expressed himself in term of children’s right in Re R. In our judgment the judge was entitled to interfere with the decision of the justices for the reasons we have explained, and he has exercised his discretion to achieve what we think was the right result. On any view, the outcome does not seem to us to be plainly wrong, and it follows that the appeal must fail.

We would like to end by reiterating what was said by Elias LJ at the close of argument. The mother, father and H all owe the grandmother an enormous debt in this case. Nothing can take away from what she has given to H. Indeed, without her, H may have been taken into care and adopted. Whatever else happens in the future, the grandmother will continue to play an important role in H’s life.

We would very much like to think that our decision will see the end of litigation about H. Of course the future is uncertain, but we very much hope that the parties will now be able to cooperate over H and his future. It is very much in H’s interests that they should do so. Dragging up the past and making criticisms of each other, however, legitimate as a forensic exercise, is no substitute for H growing up in a family in which there is mutual respect and cooperation, and in which H can move between family members without ill ease or disloyalty. In our view, the grandmother can and should now resume her proper role as grandmother.

That said, we cannot, of course, prevent the grandmother from petitioning the House of Lords by way of appeal from our decision if that is the advice she is given and the advice she accepts. For reasons which by now will be plain, we do not think further litigation appropriate and we refuse permission to appeal. In fairness to the grandmother, however, we think we should make it clear that the time for filing a petition of leave will not begin to run until the date this judgment is handed down. This notwithstanding, our hope remains that the grandmother will, for H’s sake, say that enough is enough and will negotiate a sensible handover of H to the father’s care.