Children to remain with grandparents despite mother being fit to care for them

Family Law|September 3rd 2015

Occasionally a judgment is published long after it was handed down. Over the weekend Bailii published several ‘old’ judgments. I have already written here about one of them, Re F (Children). Another, even older, judgment that was published on Bailii at the weekend was Re T (Children), a decision of the Court of Appeal.

Re T provides confirmation of two things: firstly, that when considering whether a child should live with one of its parents or a non-parent, the closer biological ties between the child and the parent do not automatically ‘trump’ other relevant factors, such as the likely effect upon the child of any change in his or her circumstances. Secondly, it confirms once again that an appeal will not succeed merely because the appeal judge might, or would, have made a different decision.

Briefly, the facts in Re T were that the mother had two children by two different fathers. Neither of the fathers played much of a role in their upbringing. By the time the case went before the Court of Appeal in 2010 the older child was ten and his sister was seven. The mother’s relationship with the younger child’s father was punctuated with serious domestic violence and it seems that this led the mother into heavy drinking, which disabled her from looking after the children. Accordingly in July 2004 she asked the older child’s paternal grandparents to look after them on a temporary basis, whilst she resolved her drink problem. In November 2005 a residence order was made in favour of the grandparents, with the mother’s consent.

By 2008 the mother had recovered from her drink problem and in October of that year she applied to the court for a residence order in her favour. Unfortunately, her application was not finally heard until April 2010, by which time the children had lived with the grandparents for nearly six years. The judge refused to order a transfer of residence to the mother, and the mother appealed to the Court of Appeal.

Giving the leading judgment Lord Justice Wilson (who is now of course a Justice of the Supreme Court) said that the mother inevitably felt strongly that because the original basis for placing the children with the grandparents was that it was to be a temporary arrangement whist she recovered her capacity to look after them, and she had now done that, the children should be restored to her care. However, said Lord Justice Wilson, “a single-minded concentration on the future welfare of the children does not, in my view, allow for much if any significance to be attributed to that feature. If, like short-term foster parents, the grandparents had, in the knowledge that the placement was to be only temporary, held back from developing a permanent bond with the children, such might be relevant; but that, clearly, is not the situation in the present case.”

Lord Justice Wilson went on to comment that the judge making the original decision had noted the decision of the Supreme Court in Re B (A Child) (which also involved a dispute between a parent and a grandparent), in which it was held that there was no presumption in favour of a biological parent. That factor was relevant only insofar as it impacted on where the welfare of the children lay.

The case was finely balanced, but the judge had correctly carried out the welfare exercise, and come down in favour of the children remaining with their grandparents. All three appeal judges indicated that they might not have come to the same conclusion, but acknowledged that they were not in the position of the judge. Sir Nicholas Wall (then the President of the Family Division) quoted from the 1982 case Clark-Hunt v Newcombe, in which Lord Justice Cumming Bruce said:

“There was not really a right solution: there were two alternative wrong solutions. The problem for the judge was to appreciate the factors pointing in each direction and to decide which of the two was the least dangerous having regard to the long term interests of the children, and so he decided the matter. Whether I would have decided it in the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasise the word ‘plainly’. In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong.”

Accordingly, the mother’s appeal was dismissed.

You can read the full judgment here.

Photo by Mr T in DC via Flickr

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