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Judgments - In re G (children) (FC)

HOUSE OF LORDS

SESSION 2005-06

[2006] UKHL 43

on appeal from [2006]EWCA Civ 372

 

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

 

In re G (children) (FC)

 

 

Appellate Committee

 

Lord Nicholls of Birkenhead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

 

 

 

Counsel

Appellants:

Peter Jackson QC

(Instructed by Family Law in Partnership for Ashtons, Truro)

Respondents:

Stephen Cobb QC

Lorna Meyer

(Instructed by Bindman & Partners)

 

Hearing dates:

6 and 10 July 2006

 

on

WEDNESDAY 26 July 2006

 

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

In re G (children) (FC)

[2006] UKHL 43

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    1.  I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree that, for the reasons she gives, this appeal should be allowed.

    2.  I wish to emphasise one point. In this case the dispute is not between two biological parents. The present unhappy dispute is between the children's mother and her former partner Ms CW. In this case, as in all cases concerning the upbringing of children, the court seeks to identify the course which is in the best interests of the children. Their welfare is the court's paramount consideration. In reaching its decision the court should always have in mind that 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. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or her biological parents without compelling reason. Where such a reason exists the judge should spell this out explicitly.

LORD SCOTT OF FOSCOTE

My Lords,

    3.  I had intended to write an opinion in this case but having had the advantage of reading in advance the opinion of my noble and learned friend Baroness Hale of Richmond I find myself so completely in agreement with the conclusion she has reached and her reasons for reaching it that an opinion from me would be otiose. I would simply say that in my opinion both Bracewell J and, in the Court of Appeal, Thorpe LJ failed to give the gestational, biological and psychological relationship between CG and the girls the weight that that relationship deserved. Mothers are special and, even after account is taken of CG's breach of the "residence" order (the justification for which I, for my part, doubt) and her reprehensible attitude towards the important relationship between the girls and CW, their other parent, CG was, on the evidence, a good and loving mother. I find myself unable to accept that the circumstances of this case came even close to justifying the judge's and the Court of Appeal's conclusion that the welfare of the girls required their primary home to be changed from that of their mother to that of CW. I concur in my noble and learned friend's opinion that this appeal must be allowed and that the order referred to in paragraph 45 of her opinion should be made.

LORD RODGER OF EARLSFERRY

My Lords,

    4.  I have had the advantage of considering the speech which my noble and learned friend, Baroness Hale of Richmond, is to deliver. I agree with it and with the speech of my noble and learned friend, Lord Nicholls of Birkenhead. For the reasons which they give I too would allow the appeal and make the order proposed.

LORD WALKER OF GESTINGTHORPE

My Lords,

    5.  I have had the privilege of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree with it and for the reasons that she gives I would allow this appeal.

BARONESS HALE OF RICHMOND

My Lords,

    6.  The issues in this case arise in a novel context but they are issues which may arise whenever there are disputes about the future care and upbringing of children. The context is that of a lesbian couple who made the conscious decision to have children together, who together arranged for anonymous donor insemination at a clinic abroad, and who brought up the children together until their relationship broke down. Now, sadly, they are locked in a dispute about the future of those children which is just as bitter as the disputes which arise between heterosexual couples. And the issues arising are just the same as those which may arise between heterosexual couples. The legal principles are also the same.

    7.  There are two issues of principle. The first is the weight to be attached to the fact that one party is both the natural and legal parent of the child and the other is not. This will require us to explore the concept of "natural" parenthood and its significance both for the adults and for the child. The second is the approach to be adopted by the court where the party with whom the child has her principal home is reluctant to acknowledge the importance of the other party in the child's life.

    The history

    8.  CG and CW lived together in a lesbian relationship from 1995 until 2002. They wanted to have a family together. When the relationship began CG was aged about 21 and CW about 36. They arranged for CG to be inseminated using sperm from an anonymous donor at a clinic abroad. (Many might see this as the more responsible choice, not only for safety reasons, but also to avoid the sort of confusion and conflict which arose in Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] 1 FCR 556. It does mean that the couple and their wider families are the only family that the child can at that stage have and in most cases this must be what they both intend.)

    9.  CG gave birth to two children, both girls. Child A was born on 2 February 1999 and is now aged seven. Child B was born on 25 June 2001 and is now aged five. Both were breast fed. CW has a son, C, who is now aged 17, born as a result of anonymous donor insemination during a previous relationship. It was agreed at an early stage in the proceedings that the girls have a positive relationship with him and regard him as their brother, and that he regards them as his sisters.

    10.  The relationship between CG and CW broke down in 2002 when CW began a relationship with her present partner, LP. They plan to enter into a civil partnership next month. But the family continued to live together in the family home in Shropshire until May 2003. Then CG and the girls moved into a property nearby. In July 2003, CW and LP began living together in the former family home. Also in the summer of 2003, CG began a relationship with a new partner, MG, who lived in Leicester. They have already registered their civil partnership, in December last year.

    11.  Proceedings began in September 2003, when CW applied for contact and a shared residence order. She was entitled to make such an application in relation to child A, who had lived with her for more than three years: see Children Act 1989, s 10(5)(b). But she required leave to apply in relation to child B, who was then only two years old. Leave was swiftly granted and an order made for interim contact two evenings a week and every other weekend. A CAFCASS officer, Mrs Barrow, was appointed to make a report.

    12.  At that stage, CG was training to be a teacher and had a placement at a school in Shropshire. The girls attended a nursery in the same town. But in November or December 2003 CG decided to move to MG's home in Leicester. She obtained a placement at a school in Leicester for the New Year and enrolled the girls in a nursery and school there. CW was not told or consulted about the move in advance.

    13.  In January 2004, in accordance with Mrs Barrow's recommendations, it was ordered that alternate weekend contact continue, with CW collecting the children from school and nursery on Friday afternoon and returning them on Monday morning, so that they could spend the whole of Sunday with C.

    14.  CW's applications were heard by Her Honour Judge Hughes over three days in June and November 2004. By that time, CG had qualified as a teacher but her partner MG was working from home and playing a major part in the children's care. Mrs Barrow's report confirmed that CG questioned CW's right to be involved in the children's lives and was opposed to a shared residence order which would confer parental responsibility upon CW. CW was now proposing that the children live with her in Shropshire. The girls clearly enjoyed life in both homes. Mrs Barrow recommended the continuation of the current arrangements, together with a move towards the equal sharing of school holidays. She also recommended a shared residence order:

    "I would suggest that the importance and value of [CW's] role in their lives needs to be acknowledged. . . . I would suggest that such a move would help to ensure that [A] and [B] grown up with a better chance of understanding the complexity of their own identity and should not be seen as detracting from [CG's] role, as their main carer."

    15.  During the hearing in November, CG gave evidence that she wanted to move with MG and the children to Cornwall. Mrs Barrow's view was that this was not in the children's interests, as they were happy and settled with the present situation, which met their needs. The judge agreed with Mrs Barrow on this point and concluded that the proposed move was in part deliberately designed to frustrate the current contact arrangements. Accordingly she ordered that CG continue to live with the children in the Leicester area until further order. Such orders are only made in exceptional cases, as the courts generally regard them as "an unwarranted imposition upon the right of the parent to choose where he/she will live within the United Kingdom"; but where the children will live is one of the relevant factors in deciding with whom they should live: see Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638, at p 642.

    16.  The judge rejected the proposal for a shared residence order, largely because of the hostility between the parties. Nevertheless, she had no doubt that the children had developed a good and close relationship with CW and with C and that this relationship should be maintained throughout their minority. But CW's important place both historically and in the future could be maintained and reinforced by good quality frequent contact. She therefore continued the alternate weekend contact from Friday to Monday and defined holiday contact on a roughly equal basis. She also provided for CW to be informed about the children's education and medical treatment.

    17.  CW appealed to the Court of Appeal against the refusal of a shared residence order. On 6 April 2005, her appeal was allowed: Re G (Residence: Same-Sex Partner) [2005] EWCA Civ 462; [2005] 2 FLR 957. Thorpe LJ explained at para 27:

    "But perhaps more crucial for me was the judge's finding that between the first and second days of the hearing the mother had been developing plans to marginalise Miss W. . . . The CAFCASS officer had expressed a clear fear that unless a parental responsibility order was made there was a real danger that Miss W would be marginalised in the children's future. I am in no doubt at all that, on the judge's finding, the logical consequence was the conclusion that the children required firm measures to safeguard them from diminution in or loss of a vital side of family life - not only their relationship with Miss W, but also with her son. . . . The judge's finding required a clear and strong message to the mother that she could not achieve the elimination of Miss W, or even the reduction of Miss W from the other parent into some undefined family connection."

    Hence a shared residence order was made defining the time which the children would spend in each household (as provided for in section 11(4) of the Children Act 1989). The order requiring CG to continue to live in Leicester (which she had not appealed) was expressly affirmed. (CG later described the Court of Appeal's decision as "appalling" and she would not be the first person to be appalled by an adverse decision in court.)

    18.  Only one month later, CG's solicitors wrote requesting CW's agreement to a move to Cornwall. This was refused. Correspondence between solicitors continued and a letter from CG's solicitors in August 2005 indicated that she intended to apply to the court for the restriction to be lifted. However, while the children were on holiday with CW, CG and MG completed the sale of their home in Leicester and the purchase of a house in Cornwall. They collected the children at the regular handover point in Leicester and drove them through the night to their new home. Both CW and the girls had been kept in ignorance of the plan. This was not only a clear breach of the court's order. As the Children's Guardian was later to say in evidence,

    ". . . from a child care perspective whether that order existed or not, to move the children in that way, in secret, without them having the opportunity to say goodbye to their friends and their school friends, I think, . . . was an appalling thing to do to them . . . .the flouting of the order was bad, but the way in which it was achieved and the emotional impact it had upon those children, was a terrible thing to do to them."

    19.  CW had to issue applications under the Family Law Act 1986 in order to locate the girls. The proceedings were transferred to the High Court and the children joined as parties. Mr Martin was appointed as the Children's Guardian. CG applied for the residence restriction to be lifted and CW applied for the residential arrangements to be changed, so that the children's primary home would be with her and they would attend schools in Shropshire. On 30 September, detailed arrangements for contact were made, pending the hearing fixed for February 2006. Over the intervening period, the children spent roughly every other weekend, the whole half term week and nine days of the Christmas holidays with CW.

    20.  The applications were heard by Bracewell J. By that time, Mr Martin had spent a considerable amount of time in both homes and got to know the children and the parties well. Of CG and the children he said this in his report:

    "She is clearly devoted to her children and they are to her. Observation of her interaction with them displays two very confident and happy children. There is a lot of laughter in the household and even when tired from work CG's interaction with them is positive and child-need led."

    Of CW and the children he said this:

    "CW is an impressive woman who has clear and well thought out ideas. I did not gain the impression that she was seeking control via her children. I believe that she is genuinely driven by a desire to protect her children and that she has tried always to act in their best interests."

    He also reported favourably, in different ways, of both MG and LP. Of C and the girls he said this:

    "[C] impressed as an articulate and intelligent young man. . . . His observed interaction with them was excellent. He joins in all the games, constructs games for them and is there for the rough and tumble. He is also good at spotting and deflecting situations. [C] obviously has a deep love for his sisters and this was demonstrably reciprocated."

    21.  He concluded that CG had been extremely foolish in defying court orders and exposing her children to the risk of emotional harm by moving to Cornwall and thereby reducing the level of involvement of CW. Nevertheless, he did not believe that removing them from CG's care and uprooting them to Shropshire would be in their best interests. There should be no further moves to marginalise CW, who was a highly significant person in their lives. He did not believe that fortnightly contact was likely to be harmful and recommended that contact be reinstated at the level ordered by Judge Hughes. He also recommended a Family Assistance Order, as he believed that he had established a good relationship with the family and could be of further help in improving communication between them.

    22.  His oral evidence was given after he had heard CG and MG give their evidence. He found their attitudes disturbing. It undermined his confidence in CG obeying court orders in future. He still believed that on balance the children should remain with her "but I would stress now that I see that as a fine balance, and I believe that the court would have to be confident that in future any orders would be complied with". This was because CG "has provided the majority of the care for these children since they were born and I think that the emotional trauma of being removed from their mother's care at this stage would be extremely harmful to them". He later said that it would also "be extremely emotionally harmful for these children if [CW] was marginalised." Under cross-examination he conceded that each would be "equally emotionally harmful". Nevertheless he maintained his recommendations.

    23.  Mrs Justice Bracewell reached a different conclusion. She found the balance of the risks of emotional harm of moving the girls to the principal care of CW, on the one hand, and of maintaining the present placement with the risk of their being deprived of their relationship with CW, on the other, to be the crux of the case. She gave ten reasons for rejecting the Guardian's assessment. Her first, and the one which was emphasised by the Court of Appeal, was that she had no confidence that if the children remained in Cornwall CG would promote the children's essential close relationship with CW and her family. Accordingly, she preserved the shared residence order but reversed the times allocated to each home. She also made a Family Assistance Order which is due to expire next month.

    24.  CG appealed to the Court of Appeal on the same two grounds as she appealed to this House and to which I shall shortly turn. On 6 April 2006 her appeal was dismissed: Re G [2006] EWCA Civ 372. Thorpe LJ rejected Mr Jackson's submission on behalf of CG that "cogent reasons must exist if a court is to prefer the claims of a person who is not a child's natural parent to one who is", although he accepted the propositions that "the identity of a child's natural (biological) parents is always a matter of significance" and that "in each case the weight to be given to the blood relationship will depend upon the matter in issue, the identity of the parties and the court's assessment of all other factors in the welfare checklist." Given that the guardian's recommendation was conditional on the court being satisfied that CG would obey court orders in future, the judge was fully entitled to conclude that she was not so satisfied. Hallett LJ, however, agreed only with a degree of hesitation:

    "I am very concerned at the prospect of removing these children from the primary care of their only identifiable biological parent who has been their primary carer for most of their young lives and in whose care they appear to be happy and thriving. She is both a biological parent and a 'psychological' parent. Mindful as I am of the changing social and legal climate, on the facts of this case, I would attach greater significance perhaps than some to the biological link between the appellant and her children."

 
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