B (A Child), Re

LORD KERR

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.

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.

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 announced that the appeal would be allowed for reasons that we would provide at a later date. This judgment contains those reasons.

Family Background

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…

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