In B (A Child) (Residence) [2009] All ER (D) 207 (Nov) the Supreme Court allowed a maternal grandmothers appeal against a decision transferring residence of her grandchild, who had lived with her since birth, to the child’s biological father.
The decision overturned the decision of the Court of Appeal B (A Child) who had themselves refused the grandmother’s appeal to reverse the decision of the circuit judge after the Family Proceedings Court had initially made a residence order in her favour. The Court of Appeal had refused the appeal primarily on the ground that the circuit judge had not been plainly wrong.
The Supreme Court unanimously allowed the appeal. The Supreme Court were of the view that in cases brought between private individuals, the welfare of the child was the paramount consideration. Lord Kerr delivered the judgment of the court to which all of its members contributed.
In summary the Supreme Court allowed the grandmother's appeal for the following reasons:
- A child’s welfare was the paramount consideration in the determination of the question of his or her residence.
- The justices’ decision was not “plainly wrong”. They had recognised that the child’s welfare was the paramount consideration and had carefully evaluated the evidence before them, correctly weighing up the various competing factors. For this reason, both the judge and the Court of Appeal had erred in overturning the justices’ decision.
- Both the judge and the Court of Appeal misinterpreted the earlier case of Re G which suggested that courts should keep in mind that the interests of a child would normally be best served by being cared for by his or her biological parent. Lord Kerr said: “All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance.”
- Any discussion of a child’s right to be brought up by its natural parents was misplaced.
- In this case, there was reason to believe that if the child’s bond with his grandmother were broken his current stability would be threatened. Whilst the father was assessed as capable of meeting the child’s needs, he had recently undergone significant changes in his own domestic position and his arrangements were untested at the time the justices made their decision. In deciding where the child’s best interests lay the justices were therefore right to give significant weight to maintaining the status quo in the child’s living arrangements.