The Court of Appeal in Re E-R (A child) 2015 had to deal with a very emotionally difficult case. [Don’t ask me why they call the case “Re E-R a child, but then use T as the child’s codename throughout. I have no idea why, it makes no sense]
T was five years and nine months old. She had lived with both parents until she was two and they separated, and from then on with her mother. Her mother sadly was diagnosed with cancer. The separation from the father had been very acriminious and the father had drifted out of T’s life.
The mother had made a will appointing a friend SJH as testamentary guardian, wanting SJH to care for T after her death. She and T moved in with SJH, who provided the mother and T with care. SJH made an application for a Special Guardianship Order whilst the mother was unwell but still alive.
His Honour Judge Vincent at the family court sitting at Truro on the 30th January 2015. The judge’s order provided for a little girl, T, born 22 July 2009 (5 years 9 months) to move to live with TR (her father), and JB (his partner) and, thereafter, to have extensive contact with the Appellants with whom T and SH (her mother) were currently living. The judge dismissed the Appellant’s application for a special guardianship order in respect of T. The unusual and tragic feature of the case is that the variation of T’s current living arrangements provided for by the order were to take effect only upon the anticipated death of T’s mother.
The principal issue in the appeal turns on whether the judge had erred in law, having conducted his welfare analysis on the basis that there was “a broad natural parent presumption in existence under our law”. The Appellants appeal only the child arrangements order and do not appeal the judge’s refusal to make a special guardianship order.
Very sadly, the mother died before knowing the outcome of the appeal and thus without knowing whether her daughter would continue to live with SJH or whether she would be removed and placed with the father.
The Court note at the end, but I think it is very important, that everyone in this case struggled with the law (counsel in the first hearing and the Judge) and that father had not been able to be represented and had to represent himself in the Court of Appeal on extremely tricky points of law. A wholly unacceptable situation.
- This was a difficult case. The court was faced with making a decision as to what arrangements could best be made to ameliorate the loss to T following the death of her mother. The judge listened conscientiously and carefully to extensive evidence and made findings about the parties involved. He was however denied critical assistance in two respects:
i) The relevant law was not brought to his attention; as a consequence his analysis was conducted on the basis that there was a presumption that T should live with her father. This was wrong in law and as already indicated, upon that basis alone, the appeal must be allowed.
ii) The judge might nevertheless have been better able to analyse the complicated issues which were thrown up had he had the benefit of something more than the somewhat one dimensional and superficial reports which were available to him.
- The father has today once again been in a position of having to represent himself. This case is yet another example of the consequences of treating private law children proceedings, (in the absence of allegations of domestic violence), as being essentially straightforward matters in which parents are expected to “sort themselves out” and to make appropriate arrangements between themselves to enable their children to spend time with each of them without the necessity for, or entitlement to, legal representation.
- The challenges presented by this case are obvious and have been set out above; the difficulties have been demonstrated at every professional level in the case, from the reports being wholly unsuited to the complexity of the case to counsel being unaware of the legal issues thrown up. As a consequence, the judge was left having to deal with the case without the help he needed. If the complexities of the case proved too much for these skilled professionals, what hope was there for the father in trying to represent himself?
- Lord Justice McFarlane recorded, when granting permission that the issues raised in the appeal were principally a matter of law and that the father was to be given “every assistance” to obtain legal advice and representation. Unhappily the father appears before the court today once again unrepresented, although supported by JB. To his credit, the father has produced a skeleton argument for the court; his oral argument was courteous and moderate but inevitably did not touch upon the legal principle at the heart of the appeal. The father’s skeleton argument, far from addressing the point of law raised by the appeal, sadly serves only to underscore his animosity towards both the dying woman and the couple who have provided a home for her and for T during the period of time when he had been absent from their lives
The Court of Appeal did overturn the order and send it back for re-hearing. That does not automatically mean that the decision is that T will live with SJH, but just that in making the decision it is not a starting point or broad presumption that it would be better for a child to live with a birth parent. The Court of Appeal were at pains to point out that just as there’s no starting point or broad presumption that natural parent should prevail, nor was there one that the status quo should prevail.
- The Law
- In Re G 2006 UKHL 43;  2 FLR 629 the House of Lords held in a dispute between a lesbian couple, one of who was the biological parent of the child, that the welfare of the child was the paramount consideration and there was no question of a parental right which might over ride that consideration. Baroness Hale said:
30. My Lords, the Children Act 1989 brought together the Government’s proposals in relation to child care law and the Law Commission’s recommendations in relation to the private law. In its Working Paper No 96, Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Commission said this:
“We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.”
Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it “rules upon or determines the course to be followed”. There is no question of a parental right. As the Law Commission explained, “the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child” or, as Lord MacDermott put it, the claims and wishes of parents “can be capable of ministering to the total welfare of the child in a special way”.
31. None of this means that the fact of parentage is irrelevant. The position in English law is akin to that in Australian law, as explained by Lindenburgh J in Hodak, Newman and Hodak (1993) FLC 92-421, and subsequently approved by the Full Court of the Family Court of Australia in Rice v Miller (1993) FLC 92-415 and Re Evelyn  FamCA 55:
“I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process… Each case should be determined upon an examination of its own merits and of the individuals there involved”
- In her conclusion Baroness Hale said:
“44. The fact that CG is the natural mother of these children in every sense of that term, whilst raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.”
- In Re B (a child) 2009 UKSC 5;  1FLR 551 Lord Hope referred back to the passage in Re G set out above, saying as follows:
This passage captures the central point in the Re G case and of this case. It is a message which should not require reaffirmation but, if and in so far as it does, we’d wish to provide it in this judgment. 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 a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interest of the child, it must be examined for its potential to fulfil that aim. There are various ways in which it may do so, some of which were explored by Baroness Hale in Re G, but the essential task of the court is always the same.”
- When granting permission to appeal McFarlane LJ said: “It is highly regrettable that the relevant case law was not drawn to the attention of the judge by counsel then instructed”. I respectfully agree. Had the two key authorities been put before the judge he would inevitably have approached his analysis from a different perspective aware that there is no “broad natural parent presumption” in existence in our law. Miss Renton who did not appear in the court below, on behalf of the Appellants submitted that had the judge approached the case from the correct legal perspective, he would not have fallen into error by elevating the father into a preferential position when he commenced his decision making process. The consequence of having done so, submits Miss Renton, is that whilst all the welfare factors properly analysed, pointed to the status quo being maintained, the biological link between the father and T had subverted the welfare factors in favour of a transfer of care to the father as a “capable father”.
- I accept Miss Renton’s submission that the judge wrongly conducted his analysis of T’s best interests on the basis that there is a presumption in law in favour of a natural parent. On this basis alone the appeal must be allowed.
- In support of her submission that an application of the welfare principle without an elevated presumption in favour of the father would have led the court to conclude that T should live with the Appellants with extensive contact to the father, In her grounds of appeal Miss Renton argued that the facts ‘militated strongly in favour of the status quo’, referring the court to a number of authorities predating Re G and Re B. In particular she relies on Re G (a minor – custody)  2 FCR 279 and a passage in which Lord Justice Balcombe said:
I would agree that this is not a matter of presumption in the legal sense but, nevertheless, when dealing with the custody of small children undoubtedly, as a working rule, one does not disturb the status quo unless there is a good reason to do so.
- In my judgment this observation should be read against the backdrop of the views expressed by Baroness Hale in relation to natural parents in Re G and Lord Hope in Re B. If one translates the term of art “status quo” into something more meaningful by relating it directly to the welfare of a child, it simply refers in the broadest sense, to the current living arrangements of a child. For T, the status quo is that place where she is living and settled, in a familiar environment, cared for by people upon whom she can rely and who are currently offering her the love, security and consistency she needs to enable her to cope with the loss of her mother. The fact that a child of five is in such an environment and has been so for some time, will inevitably be a significant feature of the case and a matter of great importance when assessing the likely effect on her of a change in her circumstances.
- In the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does (as Balcombe LJ observed), the fact that a child has been living with a party for a significant period of time; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child Whether any such factor is determinative of a particular case will depend on the unique facts of that case.
I’ll clarify this – this is the law for PRIVATE law proceedings, and in care proceedings, there is clear authority that the best person to bring up a child is the parent.
“The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided thechild’s moral and physical health are not endangered.”
Lord Templeman in Re KD (A Minor) (Access: Principles)  2 FLR 139 at 141A.
This has been cited approvingly in dozens of cases and is a fundamental underpinning of public children law. It at essence means that it is not the job of the Court when considering a Care Order application to think about whether the child might have a happier life, or better standard of living and better opportunities if they lived with foster carers or nice adopters, but to decide whether the parents care of the child was harmful to them in a way that could not continue. It is the bulwark against social engineering.
(Many would argue, and Owen Jones in particular has argued that a large part of the adoption system is social engineering, moving children from poor working-class families to middle-class ones, but if the Court does its job properly this ought not to happen)
There might well be some tricky decisions in future months when the options before the Court are not parent v foster care, but ‘good enough but not great parent’ versus ‘stellar grandparents’ – it must be very hard to resist the tempation to ‘fix’ the children’s lives by leaving them with far more capable grandparents. But that is a tempation that Lord Templeman warned us to avoid.