Many grandparents caring for a grandchild believe that their position is secondary to that of the child's biological parents and that should the parents seek the return of the child this would naturally be ordered by the court.
This is not necessarily the case. Section 1(1) of the Children Act 1989 provides that 'when a court determines any question with respect to the upbringing of a child; the child's welfare shall be the court's paramount consideration'.
In the Supreme Court case of Re B (a child) decided on 19th November 2009 a maternal grandmother's appeal against a decision of the court to transfer residence from the herself to the child's father was allowed.
The case involved a four year old child who had lived with his maternal grandmother since his birth. He had overnight staying contact with his father every weekend. Initially the Magistrates Court made a Residence Order in favour of the grandmother allowing the child to remain in her care. Following an appeal by the father residence of the child was transferred to him. The court relied on a similar decision in the case of Re G (children)(residence: same sex partner) 2006 UKHL 43 [2006] 1 WLR 2305 stating that the rearing of a child by his biological parent could be expected to be in the child's best interests. The judge also commented that although the grandmother's care would be better, the father's care would be 'good enough'.
The grandmother appealed to the Court of Appeal and then the Supreme Court. On appeal to the Supreme Court the appeal was allowed and the court upheld the original decision of the magistrates to make a Residence Order in the grandmother's favour meaning that the child should remain with the grandmother.
In this case the Supreme Court re-iterated that the most important consideration in determining issues relating to the residence of a child is the child's welfare. The court makes it clear that the importance of a biological parent as a carer for a child must be considered along with all other factors relating to what is in the best interests of the child. In Re B the Supreme Court considered that it was in the best interests of the child to remain in the care of the grandmother. This is a very important case for grandparents caring for a child and one of the first reported from the new Supreme Court which replaces the House of Lords.
This article also appears in the Autumn 2010 edition of the Grandparent Times.