Taking control
The first Supreme Court family judgments demonstrate its ability to deal objectively with complex family cases and provide helpful guidance to practitioners, says DJ Michael Buckley
If you Google 'Supreme Court judgments' you cannot fail to notice that the new court has been very busy since its inception, promulgating no less than 21 judgments between the months of October and December. Some of them are a good read (and free as well!) especially the three family decisions. In each of these cases, the Court of Appeal was overruled. They are not just precedents but, like the institutes of Gaius and Justinian, the wise jurists of the Roman Empire, helpful guidance to those of us at the coalface.
In Re B (A Child) (2009) (FC) [2009] UKSC 5, both an experienced circuit judge and the Court of Appeal were overruled and a decision of the Family Proceedings Court was restored, keeping a three-year-old boy, Harry, with his maternal grandmother.
The nub of the case was that there was no automatic presumption that a child should reside with his natural parent as opposed to his grandparent. The judgment was given by Lord Kerr, who said: 'Harry has lived virtually all his young life with his grandmother. He has naturally formed a strong bond with her. There is reason to believe that if that bond is broken his current stability will be threatened.'
The welfare of the child is the paramount consideration. Parenthood does not create a presumption and only assumes any significance as a contributor to a child's welfare. Any discussion as to a child's right to be brought up by his natural parents is misplaced.
Finally, the Court of Appeal had stayed the order only on condition that Harry had contact with his father from Thursday afternoon until 4.00pm of each week. The Supreme Court found that this was, Lord Kerr said, 'regrettable, as an unwarranted disincentive to the pursuit of what proved to be... a fully merited application'.
Identifying a pool of perpetrators
In Re S-B Children [2009] EWCA, the Supreme Court again overruled the Court of Appeal and a very experienced circuit judge who at a fact-finding hearing held that baby Jason had been injured either by the mother or the father but could not say which '“ a classic whodunnit. The judge had indicated, however, that the father was 60 per cent likely to have injured the child and the mother (now separated from father) 40 per cent likely.
The threshold test was passed and this led to a care order with a view to adoption for both Jason and his younger brother William, who was born during the continuance of the proceedings. The mother had maintained contact with the children and had a good relationship with them.
The court reaffirmed that the standard of proof, including the identification of perpetrators in care proceedings, is the balance of probabilities. It was incorrect to apply a heightened standard consistent to reflect the gravity of the allegations. Lady Hale reminded us that the reason for the threshold test is that 'it is not enough that the social workers, the experts or the court think that a child would be better off living with another family. That would be social engineering of a kind which is not permitted in a democratic society.'
Where a specific perpetrator cannot be identified, a judge should still, where possible, identify a pool of possible perpetrators. Where a judge has been unable to identify a perpetrator, it is positively unhelpful to have the sort of indication of percentages that the judge gave in this case. The court must also be alive to the possibility that the finding of who the perpetrator was might turn out to be wrong, and must be prepared to revise it in the light of later evidence.
The decision to remove the second child, who had never been harmed, was also wrong. Predictions of future harm can only be based on proven findings of fact.
A substantial connection
Finally, in I (A Child) [2009] UKSC 10, the child had been resident in Pakistan since 2004, although both he and his divorced parents lived in the UK. An experienced High Court judge and the Court of Appeal were overruled on the basis that where parents opt in to the jurisdiction of an EU court under article 12.3 of Council Regulation (EC) No. 2201/2003 (Brussels ll Revised), that court can exercise jurisdiction even if the child does not live within the EU. The fact that the child's parents were habitually resident in the UK and that they and the child were British citizens satisfied the requirements of there being a substantial connection.
Interestingly, this was a case where, at the first finding hearing in December 2002, the judge found the injuries had been caused by the father, but at the welfare hearing in December 2002 had reviewed that finding and, in view of new evidence, decided that the mother was responsible!
These cases demonstrate that from its Olympian heights the Supreme Court is not remote, but detached and objective in affirming basic principles as they are applied to complex and diverse family situations.