Michaelmas Term [2009] UKSC 5 On appeal from: [2009] EWCA Civ 545

 

JUDGMENT
In re B (A Child) (2009) (FC)
before
Lord Hope, Deputy President
Lady Hale
Lord Collins
Lord Kerr
Lord Clarke
JUDGMENT GIVEN ON
19 November 2009
Heard on 14 October 2009
Appellant (GB) Respondent (RJB)
Alison Ball QC Pamela Scriven QC
Peter Horrocks Cherie Parnell
(Instructed by Powleys) (Instructed by Allan
Rutherford Solicitors)
Respondent (GLB)
In Person

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LORD KERR
1. This is a judgment of the Court.
2. This appeal requires a revisiting of a vexed but highly important topic. The
significance of parenthood in private law disputes about residence and contact has
exercised many courts over many years but one might have thought that the final
word on the subject had been uttered in the comprehensive and authoritative
opinion of Baroness Hale of Richmond in In re G (Children) (Residence: Same-sex
Partner) [2006] UKHL 43, [2006] 1 WLR 2305. As this case illustrates, however,
misunderstandings about the true import of that decision and the applicable
principles persist.
3. The case concerns a young boy whom we will call Harry, although that is
not his real name. Harry will be four years old in December of this year. Until
recently, apart from at weekends, he has lived continuously with the appellant, GB,
who is his maternal grandmother. On 6 March 2009 Lowestoft Family Proceedings
Court made a residence order in favour of GB. A contact order allowing staying
contact with both parents was also made. The orders of the Family Proceedings
Court were appealed by Harry’s father RJB to the Family Division. His Honour
Judge Richards, sitting as a High Court Judge, heard the appeal on 3 April 2009
and he made an order which, among other things, directed that there should be a
transfer of residence to the father on 25 April.
4. GB appealed Judge Richards’ order and her appeal was heard by the Court
of Appeal (Wall and Elias LJJ) on 21 May 2009. At the conclusion of the hearing,
the court dismissed the appeal and stated that the reasons for dismissal would be
given later. Permission to appeal to the House of Lords was refused. The reasons
for dismissing the appeal were provided in a judgment handed down on 11 June
2009. A stay on the transfer of residence was granted on that date to allow GB to
petition the House of Lords for permission to appeal. It was a condition of the
grant of the stay, however, that Harry should have contact with his father from
Thursday afternoon until 4 pm on Monday each week. That level of contact
continued until the hearing of the appeal before this court. Permission to appeal
was granted on 30 July 2009 and the appeal was heard on 14 October. Both GB
and RJB were represented on the appeal. Harry’s mother, GLB, appeared on her
own behalf and her only – albeit important – submission to this court was to the
effect that she wanted the best for her son. When the hearing ended, this court
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announced that the appeal would be allowed for reasons that we would provide at a
later date. This judgment contains those reasons.
Family Background
5. Harry’s parents met in the autumn of 2004. They separated in April 2005,
eight months before Harry was born. GB has been principally responsible for
caring for him from the time of his birth. Indeed, she was present when he was
born and immediately afterwards he went to live in her home. Until the order of
the Court of Appeal giving extended contact to his father, Harry has lived there
ever since.
6. Neither of Harry’s parents was able to care for him satisfactorily in the first
years of his life. His mother, GLB, lived with her mother and Harry intermittently
at GB’s home from the time that he was born until July 2006. She left GB’s home
then and has not returned.
7. On 9 November 2006 GB was granted a residence order. This was made on
consent. At the same time a parental responsibility order was made in favour of
Harry’s father, RJB. This also appears to have been made on consent. Thereafter
he spent a night and a day of every weekend with each of his parents in turn.
8. In July 2007, Harry’s father was convicted of racially aggravated assault.
He was sentenced to a term of imprisonment. It is not clear whether this term was
twelve or eighteen months but that is not important in relation to the issues which
arise on the appeal. While in prison RJB met SB, the sister of another inmate. On
his release in March 2008 they formed a relationship and they married some time
later. On 11 February 2009 their daughter was born. SB also has an older daughter
of about the same age as Harry from an earlier relationship. The older daughter
lives with RJB, SB and the daughter born in February 2009. RJB has a much older
son from another relationship but there is no contact between this son and his
father.
9. GB has not been without difficulties in her personal life. Tests have
revealed that she has had a high alcohol consumption level in the past. She has a
conviction for driving with excess alcohol and she has been the victim of domestic
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violence. Some episodes of this violence occurred in Harry’s presence but the
person who was responsible for them no longer lives with GB.
The Family Proceedings Court Hearing
10. On 28 May 2008 Harry’s mother applied for a residence order. In the course
of the proceedings which followed, Harry’s father made his own application for a
residence order. Despite having applied herself for a residence order, Harry’s
mother supported the father’s application. The order of 9 November 2006 in
favour of GB was, of course, still in force at this time and she made plain her wish
to continue to care for Harry.
11. A report from a social care manager of the local authority, AW, was
prepared for the hearing pursuant to section 7 of the Children Act 1989. It is dated
4 January 2009. It is not clear whether AW spoke to SB, the wife of Harry’s
father, but he certainly spoke to Harry’s grandmother and to both his parents. AW
considered that Harry was thriving in the care of his grandmother. He enjoyed
contact with other family members, however, and had developed positive
relationships with them. AW concluded that Harry’s mother was not capable of
providing a safe and stable environment for Harry. While there were some
concerns about GB, AW reached the view that she had proved capable of meeting
Harry’s needs. In relation to Harry’s father, AW said this:
“In my opinion, there is very little in [RJB’s]
commitment, motivation and capabilities to indicate
that he could not meet [Harry’s] needs. He is in a
secure relationship and can provide stability to his son.
He and his wife possess the necessary knowledge and
skills to raise a child healthily.
Their situation with the birth of their child places them
in an untested situation that only a period of time
would resolve.”
12. AW considered that to transfer Harry’s residence to his mother or father
would have “a significant impact” on him. In his view, the stability and security
that Harry enjoyed was due to the consistency and predictability of his
grandmother’s care. He had begun to form his first significant peer relationships at
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nursery and a move away from this would be disruptive for him. AW concluded
therefore that, while Harry’s placement with GB was not perfect, on balance it
should continue.
13. A sentence in the conclusion section of AW’s report has proved to be
somewhat controversial in the case. It was to this effect:
“In my opinion there needs (sic) to be compelling
reasons to disrupt [Harry’s] continuity of care and the
consistency and predictability that accompanies (sic)
it.”
14. The justices used the same formulation in the pro forma document that
recorded the reasons for their decision. Incongruously, however, this appeared as
the final paragraph in the section of the form that recorded findings of fact. It read:
“We have not found compelling reasons to disrupt
[Harry’s] continuity of care and the consistency and
predictability that accompanies (sic) it.”
15. Plainly, this was a verbatim quotation from AW’s report. It has been
suggested that the justices fell into error in stating that they required compelling
reasons to remove Harry from his grandmother’s care. We do not accept that
suggestion. In the first place, the justices did not say that they required compelling
reasons – merely that they did not find such reasons. More importantly, taken as a
whole, the pro forma that the justices prepared points unmistakably to their having
conducted a careful weighing of the various factors that bore directly on what was
in Harry’s best interests. Thus, for instance, they reviewed his development while
in the care of GB; noted that she had facilitated contact with both Harry’s parents,
even when his father was in prison; noted the risk of harm if he was moved;
recorded that he had good relationships with both parents and his grandmother, all
of whom were significant in his life; and expressly stated that they had balanced all
interests in making their decision and had treated Harry’s welfare as paramount.
16. We are satisfied, therefore, that the justices did not consider that compelling
reasons were an essential prerequisite to any alteration of the status quo. It is
perhaps unfortunate that the social care manager made the ‘compelling reasons’
reference and unfortunate too that it was incorporated by the justices in their
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statement of reasons but one should guard against an overly fastidious approach in
parsing the contents of such statements. Isolated from its context, the phrase is
redolent of an over-emphasis on the importance of continuing what had gone
before but we have concluded that, on a fair reading of the entire statement, it can
be confidently said that this did not happen.
The decision of Judge Richards
17. In para 21 of his judgment, Judge Richards acknowledged that the justices
had taken all the evidence into account and that their recorded reasons betokened a
very careful weighing of that evidence. He concluded, however, that they had been
“distracted by their consideration of the settled way in which [Harry] has been
brought up.” (para 29)
18. The judge referred to the decision of In re G, (which had received a passing
reference in the justices’ statement of reasons that we will consider later in this
judgment). He suggested, at para 23, that the House of Lords had made clear in
that case that “in the ordinary way … 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, more importantly, in the longer term”. For reasons that we shall give
presently, we do not consider that this is a proper representation of the decision in
In re G and we believe that it was the failure to properly understand the burden of
the decision in that case that led the judge into error.
19. The theme that it was preferable for children to be raised by their biological
parent or parents was developed by the judge in paras 24 and 25 of his judgment.
He stated that it was the right of the child to be brought up in the home of his or
her natural parent. (It is clear from the context that the judge was using the term
‘natural parent’ to mean ‘biological parent’.) We consider that this statement
betrays a failure on the part of the judge to concentrate on the factor of
overwhelming – indeed, paramount – importance which is, of course, the welfare
of the child. To talk in terms of a child’s rights – as opposed to his or her best
interests – diverts from the focus that the child’s welfare should occupy in the
minds of those called on to make decisions as to their residence.
20. The distraction that discussion of rights rather than welfare can occasion is
well illustrated in the latter part of Judge Richards’ judgment. In paras 28 and 30
he suggested that, provided the parenting that Harry’s father could provide was
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“good enough”, it was of no consequence that that which the grandmother could
provide would be better. We consider that in decisions about residence such as are
involved in this case; there is no place for the question whether the proposed
placement would be “good enough”. The court’s quest is to determine what is in
the best interests of the child, not what might constitute a second best but
supposedly adequate alternative. As the Court of Appeal pointed out at para 61, the
concept of ‘good enough’ parenting has always been advanced in the context of
public law proceedings and of care within the wider family as opposed to care by
strangers.
21. Judge Richards acknowledged that he could only reverse the decision of the
justices if he came to the conclusion that they were plainly wrong. He explained
his reasons for coming to that conclusion in the following passage from para 29:
“… I have come to the view, applying as I do the test
of whether this was plainly wrong, that in
circumstances where it is clear that the father can meet
this child’s needs that he would have a settled and
established home with his own family, that the justices
were plainly wrong in coming to their conclusion that
[Harry] should remain with his grandmother.”
22. After the judge had delivered his judgment, counsel on behalf of Harry’s
grandmother applied for leave to appeal. She submitted that the judge had attached
undue importance to what he perceived to be the desirability of Harry being
brought up by his biological parent and that he had been thereby distracted from
concentrating on Harry’s welfare. The judge rejected that submission, stating:
“For my part, I hope I made it clear that [Harry’s]
welfare is, and remains, the paramount consideration.
The test that the justices should have applied was the
welfare test. That is the test that I apply as well.”
23. In fact, at no point in his judgment did the judge say that Harry’s welfare
was the paramount consideration. We do not suggest that this statement requires to
be intoned like a mantra on every occasion that a judgment on the residence of a
child is given. Often it will be clear from the approach of the judge that this
fundamental consideration underlay his or her reasoning. In the present case,
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however, we are satisfied that the judge, notwithstanding what he said in refusing
leave to appeal, did not afford Harry’s welfare the dominant position that it should
have occupied in the decision as to his residence. Instead, he allowed the question
of the child’s so-called right to be raised by his biological parent to influence –
indeed to define – the outcome of the residence debate.
The judgment of the Court of Appeal
24. The Court of Appeal concluded at para 24 that the justices had made what
were described as “two important errors of law”. The first of these related to their
treatment of In re G. At para 14 of the section in the justices’ statement of reasons
entitled ‘findings of fact’ the following appeared: –
“In re G (Residence: Same-sex Partner) [2005] EWCA
Civ 462, [2005] 2 FLR states a child should not be
removed from primary care of biological parents.
[Harry] has never resided with his father.
Grandmother has been his psychological parent.”
25. Wall LJ, who delivered the judgment of the court, observed at para 23 that
it was unfortunate that the justices had referred to the decision of the Court of
Appeal in In re G since that had been reversed by the House of Lords. In fairness
to the justices, the incorrect citation appears to have derived from the skeleton
argument of counsel for the father. In any event, it is clear from the reference in
para 14 that the justices had considered (to the extent that they had considered it at
all) the decision of the House of Lords rather than that of the Court of Appeal. In
her skeleton argument, counsel for RJB had quoted the virtual entirety of the short
speech of Lord Nicholls of Birkenhead. It would appear that this provided the
source material for the justices’ statement that a child should not be removed from
the primary care of biological parents.
26. Despite the fact that Baroness Hale had delivered the leading opinion in In
re G and that all the other members of the appellate committee had expressed their
unqualified agreement with it, her speech does not appear to have been extensively
considered – indeed a single sentence of her opinion was all that was quoted in the
skeleton argument submitted on behalf of the father. It was to the effect that
“parenthood is to be regarded as an important and significant factor in considering
which proposals advance the welfare of the child” ([2009] 1 WLR 2305, para 31).
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As we shall see, the significance of Baroness Hale’s speech to the outcome of this
case went far beyond this somewhat selective quotation.
27. In developing its first criticism of the justices’ approach the Court of
Appeal suggested that there had not been a sufficient discussion of the respective
roles of parents and grandparents in a child’s life. As a consequence, the court
concluded that the justices had fallen into error in referring to the grandmother as
Harry’s psychological parent while failing to acknowledge his father’s role beyond
recording that he was capable of meeting Harry’s needs.
28. When considering the criticism that the justices had failed to – in the words
of Wall LJ at para 24 – “grapple adequately with the fundamental issue in the
case” – one must keep closely in mind that the context in which discussion of the
respective roles of the father and the grandmother in Harry’s life should take place
is how those roles and the manner in which the parent and grandparent fulfil them
can conduce to the child’s welfare. Whether this particular criticism is justified
depends, therefore, on the sufficiency of the justices’ consideration of the roles of
the father and grandmother in terms of the contribution that they could make to
Harry’s welfare.
29. The pro forma document that the justices prepared giving the reasons for
their decision should not, we believe, be treated as containing an exhaustive record
of all the material that was considered by them. From the note of the evidence
given in the family proceedings court it is clear that the role that the father could
play in Harry’s life and the care that he had provided in the past were
comprehensively canvassed and debated. Both GB and AW were cross examined
extensively about these issues and it is difficult to accept that the justices did not
have them in mind in making the decision about residence.
30. It would perhaps have been preferable if the justices had placed on record
that they had considered the role of his father in Harry’s life but it is not easy to
see what they might have said beyond that. They had commented that RJB had
helped with Harry’s care in the past and had expressed himself willing to do so
again; they acknowledged that he was capable of meeting Harry’s needs; and they
accepted that Harry had enjoyed a good relationship with his father. It is clear that
they were alert to the role that he had played in this young boy’s life. We cannot
therefore agree that they failed to grapple with the respective roles of father and
grandmother.
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31. The second “important error of law” identified by the Court of Appeal was
the justices’ statement in relation to compelling reasons. Wall LJ said this about
that statement:
“25. … 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
[Harry’s] welfare was their paramount consideration,
the question which they had to decide was whether or
not it was in [Harry’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 [Harry’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.”
32. As we have pointed out at [14] above, the justices did not say that they
required such reasons, merely that they had not found them. When one examines
the statement of reasons as a whole and has in mind that this was a direct quotation
from AW’s report, it is not difficult to reach the conclusion that the justices did not
regard this as an essential pre-condition to Harry’s residence being transferred to
his father. We find it impossible to agree with the judgment of the Court of Appeal
that this statement betokened an over emphasis by the justices on preserving the
status quo.
In re G
33. The Court of Appeal acknowledged that In re G had given the final quietus
to the notion that parental rights have any part to play in the assessment of where
the best interests of a child lay. Indeed, (correctly in our view) it identified this as
the principal message provided by the case. It is certainly the principal message
that was pertinent to the present case. It appears, however, that the urgency of that
message has been blunted somewhat by reference to the speech of Lord Nicholls
and some misunderstanding of the opinion that he expressed. Having agreed that
the appeal should be allowed for the reasons to be given by Baroness Hale, Lord
Nicholls said at para 2:
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“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.”
He then said:
“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.”
34. As we have observed, it appears to have been in reliance on the latter
passage that the justices stated that a child should not be removed from the primary
care of biological parents. A careful reading of what Lord Nicholls actually said
reveals, of course, that he did not propound any general rule to that effect. For a
proper understanding of the view that he expressed, it is important at the outset to
recognise that Lord Nicholls’ comment about the rearing of a child by a biological
parent is set firmly in the context of the child’s welfare. This he identified as “the
court’s paramount consideration”. It must be the dominant and overriding factor
that ultimately determines disputes about residence and contact and there can be no
dilution of its importance by reference to extraneous matters.
35. When Lord Nicholls said that courts should keep in mind that the interests
of a child will normally be best served by being reared by his or her biological
parent, he was doing no more than reflecting common experience that, in general,
children tend to thrive when brought up by parents to whom they have been born.
He was careful to qualify his statement, however, by the words “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” (emphasis added). In the ordinary way one can expect
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that children will do best with their biological parents. But many disputes about
residence and contact do not follow the ordinary way. Therefore, although one
should keep in mind the common experience to which Lord Nicholls was referring,
one must not be slow to recognise those cases where that common experience does
not provide a reliable guide.
36. Although the factual background to the case of In re G was, as Baroness
Hale described it, ‘novel’ (a lesbian couple decided to have children together,
arranged for anonymous donor insemination and brought up the children together
until their relationship broke down) the issues arising and the legal principles that
applied were, as Baroness Hale pointed out, just the same as would arise in the
case of a heterosexual couple. After conducting what the Court of Appeal rightly
described as a scholarly analysis of the statute and the authorities which pre-dated
the 1989 Act, Baroness Hale turned to consider the recommendations of the Law
Commission report on private law cases relating to child care. She said this at para
30:
“[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, Family Law: 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 Law Commission said:
‘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
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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 in J v C [1070] AC 668,
711, 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’.”
37. This passage captures the central point of the In 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 would 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 as 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 interests 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 In re G, but the essential task for the court is always
the same.
38. For the reasons that we have given, we consider that the justices’ decision
cannot be characterised as ‘plainly wrong’. True it is that they misapprehended the
real import of In re G and it was, as we have said, unfortunate that they repeated
the phrase ‘compelling reasons’ from AW’s report but we do not consider that
these detract from their careful evaluation of the evidence and their weighing of
the various competing factors involved in their determination of the question of
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Harry’s residence. Nor do they detract from their important recognition that his
welfare was the paramount consideration in that determination.
39. It follows that Judge Richards erred in his conclusion that it was open to
him to reverse the justices’ findings. The judge was correct in his view that G v G
[1985] 1 WLR 647 forbade interference with the exercise of the justices’ discretion
unless the decision was plainly wrong. Where he fell into error was in deciding
that his analysis of their statement of reasons supported his conclusion that it was
so.
40. The Court of Appeal recognised some of the deficiencies in the judge’s
analysis, in particular his apparent application of the principles relevant only in
public law cases to private law proceedings under the 1989 Act; his
pronouncement of something which came close to a presumption that a child
should live with his biological parent or parents; and of the relevance of the
concept of ‘good enough’ parenting in this case. But the court considered that it
could overlook these shortcomings because “the judge’s fundamental [approach]
was not plainly wrong” (para 62). This in turn depended on their acceptance of the
judge’s conclusion that the justices’ decision was plainly wrong. Since we have
concluded that it was not, the basis on which the Court of Appeal felt able to
uphold Judge Richards’ decision falls away.
41. As we have said earlier, many disputes about residence and contact do not
follow the ordinary way. This case is one such. Harry has lived virtually all of his
young life with his grandmother. He has naturally formed a strong bond with her.
There is reason to apprehend that, if that bond is broken, his current stability will
be threatened. Harry’s father had undergone significant changes in his own
domestic arrangements at the time that the justices made their decision. While he
was assessed as capable of meeting Harry’s needs, those arrangements remained
untested at the time the justices had to determine where Harry should live. There
was therefore ample material available to the justices to reach the determination
they did. That determination lay comfortably within the range of the decisions that
the justices, in the exercise of their discretion, could reasonably make. For these
reasons we allowed the appeal.
42. What we heard of the contact and residence arrangements made as a result
of the conditions imposed by the Court of Appeal’s order granting a stay
confirmed the view that considerable disruption to Harry’s life would have been
involved in a transfer to live with his father. The distance between the homes of his
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grandmother and his father exceeds thirty miles, we were told. It seems inevitable
that, if he were to live with his father, he would no longer be able to attend the
nursery where he has already made good progress. Transfer of his residence would
involve a great deal more than a change of address. Many of the familiar aspects
of his life which anchor his stability and sense of security would be changed. The
justices were therefore right to give significant weight to the desirability of
preserving the status quo. This is a factor which will not always command the
importance that must be attached to it in the present case but we are satisfied that it
was of considerable significance in the debate as to where this child’s best interests
lay.
43. For that reason, it is perhaps regrettable that such a radical change to
Harry’s residence and contact arrangements came about as a result of the
conditions imposed by the Court of Appeal. Conscious of the need to minimise
the sense of bewilderment that can accompany abrupt and substantial changes to a
child’s living arrangements, we made a transitional order that provided for a
phased return to those that were in place before. We consider that, as a general
rule, conditions such as were imposed by the Court of Appeal in this case should
not be made where a party seeks permission to appeal, not least because these
might be seen as an unwarranted disincentive to the pursuit of what proved in this
case to be a fully merited application.