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G (children), In Re

G (children), In Re

Case [2006] UKHL 43

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I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree that, for the reasons she gives, this appeal should be allowed.

I wish to emphasise one point. In this case the dispute is not between two biological parents. 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. 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.

LORD SCOTT OF FOSCOTE

My Lords,

I had intended to write an opinion in this case but having had the advantage of reading in advance the opinion of my noble and learned friend Baroness Hale of Richmond I find myself so completely in agreement with the conclusion she has reached and her reasons for reaching it that an opinion from me would be otiose. I would simply say that in my opinion both Bracewell J and, in the Court of Appeal, Thorpe LJ failed to give the gestational, biological and psychological relationship between CG and the girls the weight that that relationship deserved. Mothers are special and, even after account is taken of CG's breach of the "residence" order (the justification for which I, for my part, doubt) and her reprehensible attitude towards the important relationship between the girls and CW, their other parent, CG was, on the evidence, a good and loving mother. I find myself unable to accept that the circumstances of this case came even close to justifying the judge's and the Court of Appeal's conclusion that the welfare of the girls required their primary home to be changed from that of their mother to that of CW. I concur in my noble and learned friend's opinion that this appeal must be allowed and that the order referred to in paragraph 45 of her opinion should be made.

LORD RODGER OF EARLSFERRY

My Lords,

I have had the advantage of considering the speech which my noble and learned friend, Baroness Hale of Richmond, is to deliver. I agree with it and with the speech of my noble and learned friend, Lord Nicholls of Birkenhead. For the reasons which they give I too would allow the appeal and make the order proposed.

LORD WALKER OF GESTINGTHORPE

My Lords,

I have had the privilege of reading…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] UKHL 43
Decision Date