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Grandmother prevails

Litigation Letter

Grandmother prevails

In re B (a child) (Residence Order) Supreme Court [2009] UKSC 5; TLR 23 November

The significance of parenthood in private law disputes about residence and contact has exercised many courts over many years. The judgment of Lady Hale in In re G (Children) (Residence: Same-sex partner) [2006] 1WLR 2305 might be thought to have been the final word on the subject but misunderstandings about the true import of that decision persisted. In the present case the judge on appeal from the family proceedings court had failed to concentrate on the factor of paramount importance: the welfare of the child. To talk in terms of child’s rights, as opposed to his best interest, diverted from the focus that the child’s welfare should occupy in the minds of those called on to make decisions as to residence. Although Lord Nicholls had said in In re G , that ‘a child should not be removed from the primary care of his/her biological parents without compelling reason’ he had not propounded any general rule to that effect. Lord Nicholls’ comment about the rearing of a child by a biological parent was set firmly in the context of the child’s welfare. That had to be the dominant in overriding factor that ultimately determined disputes about residence and contact. There could be no dilution of its importance by reference to extraneous matters.

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