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Supreme Court backs grandmother in residence battle with father

24 November 2009

The Supreme Court has ruled that a young boy should continue to live with his grandmother and not his father because the “paramount consideration” should always be what is in the child’s best interests.

Delivering judgment on behalf of the court in GB v RJB and GLB [2009] UKSC 5, 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.

“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.”

The case concerned a young boy, who will be four years old next month. In the judgment he is referred to as “Harry”, though this is not his name. At the Court of Appeal he was referred to as “B” and the case was known as In Re B (A Child).

B’s parents split up before he was born. His father, RJB, was convicted of racially aggravated assault in 2007. While in prison, he met the sister of an inmate and after his release they got married. His wife gave birth to a daughter in February this year.

The court heard that B’s mother, GLB, had “not been without difficulties in her personal life”. Having had a “high alcohol consumption level”, she was convicted of drink-driving and is a victim of domestic violence.

GB, B’s grandmother, was present at his birth and has looked after him ever since.

When his mother and father applied for residence orders, a social worker’s report concluded that B was thriving with his grandmother and the magistrates refused to move him. This was overturned by the High Court, a ruling later upheld by the Court of Appeal.

Lord Kerr criticised the High Court judge for allowing 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.”

He criticised the Court of Appeal for “some misunderstanding” of the opinion of Lord Nicholls in the leading case of In Re G (Children) UKHL 43, and failing to give proper consideration to Baroness Hale’s leading judgment in the case.

Lord Kerr said the “central point” of In Re G was that the welfare of the child was the paramount consideration.

He said the boy had lived virtually all of his 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.”

Lord Kerr said that although B’s father was assessed as capable of meeting B’s needs, those arrangements were untested at the time the magistrates had to determine where the boy 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.”

Wayne M Clarke, partner at Powleys in Lowestoft, acted for the grandmother.

“I never had any doubt that we would be successful and the order of the magistrates would be reinstated,” he said.

“I couldn’t see how anyone could say that they were ‘plainly wrong’. I was absolutely amazed when the High Court judge granted a residence order to the dad.

“We thought we would win in the Court of Appeal. I was very surprised that we lost.”

However, once the Supreme Court agreed to hear the appeal, Clarke said he was “99 per cent certain” that the grandmother would win.

“It’s a satisfying outcome, and I hope everything turns out OK for grandma, the dad and the little boy.”

Categorised in:

Discrimination Children Professional negligence