Judgments - In re G (children) (FC)

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    It is this point which Mr Peter Jackson QC has put at the forefront of his submissions on behalf of the mother. He argues that, whatever the test to be adopted, it was wrong for the courts below to attach no significance whatever to the fact that CG is the child's mother. He also argues that the judge allowed herself to be distracted, by her disapproval of the mother and her behaviour, from a full consideration of the evidence relating to the children's welfare, which would have led her to a different conclusion.

    The welfare principle and the natural parent

    25.  Section 1(1) of the Children Act 1989 is clear:

    "When a court determines any question with respect to -

    (a)  the upbringing of a child; or

    (b)  the administration of a child's property or the application of any income arising from it,

    the child's welfare shall be the court's paramount consideration."

    Section 1(3) supplements this by a list of factors to be considered in contested cases:

    "(a)  the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

    (b)  his physical, emotional and educational needs;

    (c)  the likely effect on him of any change in his circumstances;

    (d)  his age, sex, background and any characteristics of his which the court considers relevant;

    (e)  any harm which he has suffered or is at risk of suffering;

    (f)  how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

    (g)  the range of powers available to the court under this Act in the proceedings in question."

    26.  The statutory ancestor of this principle was section 1 of the Guardianship of Infants Act 1925 (later consolidated with minor changes of terminology in section 1 of the Guardianship of Minors Act 1971) which read:

    "Where in any proceedings before any court … the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father."

    27.  The 1925 Act was passed at a time when the father was sole guardian of his legitimate children and the mother the only person with parental rights over her illegitimate child. Section 1 clearly meant that, in future, such legal claims were to be ignored and the child's welfare was to prevail. In the landmark case of J v C [1970] AC 668, this House held that this was equally applicable to disputes between parents and non-parents. In an oft-quoted passage, at pp 710-711, Lord MacDermott explained the meaning of the words "shall regard the welfare of the infant as the first and paramount consideration" thus:

    ". . . it seems to me that they must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed." (emphasis supplied)

    The House therefore rejected the proposition that there was any presumption in favour of the natural parents of the child. Lord MacDermott put their position in this way, at p 715:

    "2. In applying section 1, the rights and wishes of parents, whether unimpeachable or otherwise, must be assessed and weighed in their bearing on the welfare of the child in conjunction with all other factors relevant to that issue.

    3. While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over other considerations, such rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. . . ." (emphasis supplied)

    Lord MacDermott also referred, as did Lord Oliver of Aylmerton in Re KD (A Minor) (Ward: Termination of Access) [1988] AC 806, 828, to a proposition of FitzGibbon LJ in the Irish case of Re O'Hara [1900] 2 IR 232, 240, decided before the enactment of the paramountcy principle in 1925:

    "In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded."

    28.  Since then, the position has been put in a variety of ways in the Court of Appeal. Some have repeated the reference to the parental right: see, for example, Fox LJ in Re K (A Minor) (Ward: Care and Control) [1990] 1 WLR 431, 434; Butler-Sloss LJ in Re H (A Minor) (Custody: Interim Care and Control) [1991] 2 FLR 109, 111. In Re K, however, Waite J pointed out, at p 437:

    "The speeches in the House of Lords make it plain that the term 'parental right' is not there used in a proprietary sense, but rather as describing the right of every child, as part of its general welfare, to have the ties of nature maintained, wherever possible, with the parents who gave it life."

    But he went on to say that the question was,

    "Are there any compelling factors which require me to override the prima facie right of this child to an upbringing by its surviving natural parent?" (emphasis supplied)

    29.  In Re H, Lord Donaldson of Lymington MR, at p 113, explained matters this way:

    "So it is not a case of parental right opposed to the interests of the child, with an assumption that parental right prevails unless there are strong reasons in terms of the interests of the child. It is the same test which is being applied, the welfare of the child. And all that Re K is saying, as I understand it, is that of course, there is a strong supposition that, other things being equal, it is in the interests of the child that it shall remain with its natural parents. But that has to give way to particular needs in particular situations."

    That was the last word before the Children Act 1989 came into force. In Re W (A Minor) (Residence Order) [1993] 2 FLR 625, at p 633, Balcombe LJ agreed "wholeheartedly" with Lord Donaldson and hoped that "this divergence of views, if such it really is, can finally be stilled". Waite LJ also agreed with Lord Donaldson's formulation at p 639, and remarked that:

    "The authorities which have been cited by Balcombe LJ illustrate the difficulty of finding, within the infinite variety of circumstances in which the welfare of a child may fall to be applied as the paramount consideration, some principle which does precise justice to the element in every child's welfare represented by the advantage of maintaining the ties of nature with its own parent."

    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 Lindenmayer 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 [1998] 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." (emphasis supplied)

    32.  So what is the significance of the fact of parenthood? It is worthwhile picking apart what we mean by "natural parent" in this context. There is a difference between natural and legal parents. Thus, the father of a child born to unmarried parents was not legally a "parent" until the Family Law Reform Act 1987 but he was always a natural parent. The anonymous donor who donates his sperm or her egg under the terms of the Human Fertilisation and Embryology Act 1990 is the natural progenitor of the child but not his legal parent: see 1990 Act, ss 27 and 28. The husband or unmarried partner of a mother who gives birth as a result of donor insemination in a licensed clinic in this country is for virtually all purposes a legal parent, but may not be any kind of natural parent: see 1990 Act, s 28. To be the legal parent of a child gives a person legal standing to bring and defend proceedings about the child and makes the child a member of that person's family, but it does not necessarily tell us much about the importance of that person to the child's welfare.

    33.  There are 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. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is "his" child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child (see, for example, the psychiatric evidence in Re C (MA) (An Infant) [1966] 1 WLR 646). For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.

    34.  The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child's mother, whereas the mother who provided the egg is not: 1990 Act, s 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.

    35.  The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase "psychological parent" gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:

    "A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent."

    36.  Of course, in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique. In these days when more parents share the tasks of child rearing and breadwinning, his contribution is often much closer to that of the mother than it used to be; but there are still families which divide their tasks on more traditional lines, in which case his contribution will be different and its importance will often increase with the age of the child.

    37.  But there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare. Adoptive parents are the most obvious example, but there are many others. This is the position of CW in this case. Whatever may have been the mother's stance in the past, Mr Jackson on her behalf has not in any way sought to diminish the importance of CW's place in these children's lives or to challenge the legal arrangements put in place as a result of the first proceedings. Indeed, he asks us to restore those orders.

    38.  What Mr Jackson challenges is the reversal in the parties' positions in response to the mother's removal of the children to Cornwall. He points out that, with one exception at the beginning of Bracewell J's judgment, there was no reference to the important fact that CG is these children's mother. While CW is their psychological parent, CG is, as Hallett LJ pointed out, both their biological and their psychological parent. In the overall welfare judgment, that must count for something in the vast majority of cases. Its significance must be considered and assessed. Furthermore, the evidence shows that it clearly did count for something in this case. These children were happy and doing very well in their mother's home. That should not have been changed without a very good reason.

    The children's welfare

    39.  Mr Jackson argues that there was not a very good reason to change the children's primary home. The judge over-emphasised what she saw as the "crux" of the case at the expense of the overall picture of what would be best for these children. Although she twice referred to the "checklist" of relevant factors in section 1(3) of the 1989 Act, had she gone through the evidence relating to each of those factors systematically, giving proper weight to the children's relationship with their mother, she could not have reached the conclusion which she did. In particular, when concluding that she had no confidence that the mother would not seek to marginalise CW in the future, she gave no weight to the fact that regular and good quality contact had been continuing since it was re-established after the move.

    40.  My Lords, it is of course the case that any experienced family judge is well aware of the contents of the statutory checklist and can be assumed to have had regard to it whether or not this is spelled out in a judgment. However, in any difficult or finely balanced case, as this undoubtedly was, it is a great help to address each of the factors in the list, along with any others which may be relevant, so as to ensure that no particular feature of the case is given more weight than it should properly bear. This is perhaps particularly important in any case where the real concern is that the children's primary carer is reluctant or unwilling to acknowledge the importance of another parent in the children's lives.

    41.  Making contact happen and, even more importantly, making contact work is one of the most difficult and contentious challenges in the whole of family law. It has recently received a great deal of public attention. Courts understandably regard the conventional methods of enforcing court orders as a last resort: fining the primary carer will only mean that she has even less to spend upon the children; sending her to prison will deprive them of their primary carer and give them a reason to resent the other parent who invited this. Nor does punishment address the real sources of the problem, which may range from a simple failure to understand what the children need, to more complex fears resulting from the parents' own relationship. That is why the assistance of a professional such as Mr Martin in this case can be so valuable. It is also why more constructive measures are to be introduced under the Children and Adoption Act 2006. The court will be able to direct either parent to engage in activities which will help them to understand and work through the difficulties. The range of penalties for breach of court orders will include an order to engage in unpaid work, thus reducing the risk that punishing the parent will also punish the child.

    42.  However, at least as long ago as V-P v V-P (Access to Child) (1978) 1 FLR 336, it was realised that a more potent encouragement to comply with court orders may be to contemplate changing the child's living arrangements. Ormrod LJ put it very directly:

    ". . . I do not wish to issue threats, but the mother should, I think, realise this: the father has a home with the half brother in it, he is unemployed, he is available to look after both these children full time. The mother is fully occupied, so that the grandmother is playing a very important part in this child's life . . . That being so, it would be a mistake on the part of the mother, in my judgment, to assume that the order for custody in her favour is inevitable; it is not and if the situation goes on as it is at present then it may be necessary to reconsider the question of custody."

    It is, I believe, becoming more common for family judges not only to issue such warnings but also to implement them. However, the object is to ensure that the arrangements which the court has made in the best interests of the child are actually observed. Only if this is not happening will the court conclude that other arrangements will be better for the child.

    43.  In this particular case, the mother had behaved very badly. She, together with MG, had deliberately disobeyed the court's order. This had required considerable planning and the deception of her own solicitor. More importantly, it had been a terrible thing to do to the children. The aim had been to frustrate the contact arrangements ordered by the court. However, once she had been located and contact arrangements reinstated, she had abided by them. Had this been the usual case of a similar dispute between mother and father, I find it impossible to believe that a court would have contemplated changing the children's primary home and schooling while contact was continuing in accordance with the court's order. Of course, were the contact itself to be further frustrated, that would be a different matter.

    Conclusion

    44.  My Lords, I am driven to the conclusion that the courts below have allowed the unusual context of this case to distract them from principles which are of universal application. First, the fact that CG is the natural mother of these children in every sense of that term, while 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. Yet nowhere is that factor explored in the judgment below. Secondly, while it may well be in the best interests of children to change their living arrangements if one of their parents is frustrating their relationship with the other parent who is able to offer them a good and loving home, this is unlikely to be in their best interests while that relationship is in fact being maintained in accordance with the court's order.

    45.  I would therefore allow the appeal and make the order which Mr Jackson invites us to make. This is simply to reverse the names in the current allocation of time between the two households. I would also make a fresh Family Assistance Order so that Mr Martin may continue his excellent work with this family for a further six months from today's date. That order may, of course, be repeated in due course and Mr Martin may refer the case back to court if the arrangements are not working: see Children Act 1989, s 16(6). I am very conscious, as was Dr Sturge, the child psychiatrist who gave evidence in the case of Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] 1 FCR 556, of the vulnerability of someone in CW's position. Her importance in these children's lives has been stressed by both the professionals and all the judges who have decided this case. The mother should now be in no doubt about that or about the possible consequences should she not adhere to the arrangements which we have ordered. It is, however, always possible for parents to modify their arrangements by agreement. Modifications become inevitable as children grow older and develop lives of their own. Agreed arrangements are almost always preferable to those imposed by a court. I am sad to see these two women, who deliberately brought these children into the world for them to share, and who both love and want the best for them, locking themselves into the same sort of battles that, sadly, we so often see between mothers and fathers. I hope that they can now move on from this dispute into a happier and more co-operative future for the sake of their children.

 
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