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RE W (A MINOR) (RESIDENCE ORDER) Court of Appeal Lord Donaldson of Lymington MR and Balcombe LJ 19 May 1992

Lord Donaldson of Lymington MR and Balcombe LJ
19 May 1992
Residence order- Child  Agreement made before birth - Subsequent to birth child residing with father - Mother repenting agreement - Mother and father signing a parental responsibility agreement  Mother applying for interim ex parte residence order - Father opposing application - Judge preserving the status quo pending preparation of welfare officer's report - Mother appealing - Whether 4-week-old baby should normally be with its mother - Whether status quo should be maintained pending outcome of the welfare officer's report
The natural parents never married. The mother formed a relationship with the father and became pregnant, but the relationship did not last. The mother had a 3-year-old child from a previous marriage. An agreement was reached by the parents that when the child was born it would be cared for by the father and he employed a nanny for that purpose. The day after the birth the mother left hospital in order to care for her 3-year-old child. Two days after the birth, the child was
collected from the hospital by the father and was looked after by the nanny and himself. Three days after the birth, the mother signed a parental responsibility agreement giving parental rights to the father. The mother asserted that this was done under pressure. On or before 5 May 1992 the mother wrote to the father stating that she wished the child to live with her. The mother made an application to the court for an interim cx parte residence order which was heard 40 days later. The mother indicated at the hearing that she wished to commence breast-feeding, although she had not done so prior to the hearing. The judge ordered that the status quo should be maintained and that the child should remain with the father pending the outcome of the court welfare officer's report which was ordered. The mother appealed.
Held - allowing the appeal -
(I) Although there was no presumption of law that a child of any given age was better off with one parent or the other, and although the only legal principle involved was that the welfare of the child was the paramount consideration, no court could be ignorant of what would be the natural position if other things were equal. There was a rebuttable presumption of fact that a baby's best interests were served by being with its mother, although the situation might be different with older children.
(2) The decision as to the child's placement should not have been left until the final hearing. The pressure on the courts and welfare services might not have enabled the case to have been heard for a further 3 months. The party that had the child in the meantime had an in-built advantage because when the case returned before the court the status quo assumed an even greater importance than originally. In those circumstances, the judge should have then considered which was likely to be better for the child's welfare. The child in question was less than 4 weeks old and her welfare required that for the time being she should be with her mother.
(3) Although there was a well-established principle that when inquiries were being made in order to decide what were the best arrangements for a child the status quo should not be disturbed, it was not really possible to establish a status quo within a period of 3 weeks at the beginning of the child's life.
Cases referred to in judgment.
B (A Minor) (Residence Order: Ex parte), Re [1992] 2 FLR 1, [1992] 3 WLR 113, CA
G v G (Minors: Custody Appeal) [1985] FLR 894, [1985] 1 WLR 647, [1985] 2 All ER 225, HL
H (A Minor) (Interim Custody), Re [1991] 2 FLR 411, CA
APPEAL from the order of Judge Main QC sitting in the Guildford County Court
Susan Matthews for the mother
Charles Scott for the father
BALCOMBE L.J: This is an appeal from an order of his Honour Judge Main QC made in the Guildford County Court 4 days ago on 15 May 1992. By his order he declined to make any residence order in relation to a child, who will be 4 weeks old in a day or two, and left her in effect in the care of the child's father and a nanny, and dismissed the mother's application for an interim residence order. From that order the mother has appealed.
There has been no formal evidence put in in this case and so the facts as I set them out are taken from what has been said in various documents and before the judge, and it may well be that when the evidence finally comes to be properly taken there may be details which turn out to be inaccurate. It matters not for this purpose.
The mother has one child, a boy of 3, by a marriage which has now broken up. She formed a relationship with the father and became pregnant by him but the relationship did not last. She and the father agreed that when the child was born he, the father, would care for the child and in reliance upon that agreement the father has made arrangements, including taking on a nanny as his employee to look after the child. The child was born on 21 April 1992. Within a day or two of the child's birth the mother repented of the decision she had made and decided that she wished to care for the child herself. However, again within a day or two, I think 3 days after the child was born, the mother signed a parental responsibility agreement giving the father parental rights without which, or without an order, he would have had no such rights as he was not married to the mother; but nevertheless the mother signed that agreement. She asserts that it was done under pressure. It matters not for the present purpose because, as I said, it gives him no more than he would have had had he been the child's legitimate father.
The mother left hospital the day after the child's birth to go back and look after her 3 year old, and 2 days later the father took the child from the hospital and she is now in the home which the father has, being looked after by himself and the nanny. The mother, as I have said, repented of her decision and fairly quickly
tried to communicate with the father to tell him of her change of heart. Again there are disputes between the parties as to the precise difficulties each had in contacting the other, but at any rate no later than 5 May 1992, there having been some attempted telephone conversations before then, the mother wrote a letter to the father making it clear that she had decided that she would like the child, R, to come and live with her. She had already then taken legal advice.
Matters then moved fairly quickly. The case came first on an ex parte basis before his Honour Judge Main on 14 May 1992 when he made an order that R be brought to the court on Friday, 15 May 1992 at 10 am when the matter would be heard and the child was to be placed with the mother by noon on Friday, 15 May 1992. At one stage there was some dispute as to whether he had power to make that order. Having regard to the decision of this court in Re B (A Minor) (Residence Order' Ex parte) [19921 2 FLR 1, it is clear that he had power to make an interim cx parte residence order and the only question is whether or not the order which he made was correctly labeled, being headed 'Specific Issue Order'. It matters not now because Mr Scott, for the father, very properly, having had an opportunity to see the judgments in Re B (A Minor) (Residence Order: Ex Parte), accepted that, subject only to the point about the label, the judge had the power to make the order he did. In any event the matter came back before the judge on the following day and he was faced with what was obviously a difficult case at the end of a very crowded list. One knows the great difficulties with which judges in the county court dealing with this type of case are faced when the list is so full.
He took the view, and it is best expressed in a short note which he has signed, that he should preserve the status quo whilst inquiries were made by the court welfare officer. I think I should read from his note, because in fairness to this very experienced judge, since I have come to the view that he was, within the guide-lines of G v G (Minors) (Custody Appeal) [1985) FLR 894, plainly wrong, it is only fair to him to give such reasons as he has put down; and these are cx post facto reasons because he did not have the time or the opportunity to give a proper judgment. Having referred to the status quo, he said:
Sometimes there is grave doubt about the safety of the child in that environment and the court may have to hear evidence before making a decision; sometimes there may be compelling reasons (eg the view of an older child) why a change of home should be approved before inquiries are complete.  
This case presented as a case where because the age of the child the initial reaction might well be that the child was in the wrong home. The basic reason for the child being in that home appeared to be mother's agreement, although the reality of that agreement and the reasons for her apparent change of mind would need investigation in the course of inquiries. I took the view that pending inquiries it would be wrong for the court to order a change of home unless there were some other significant fact.’
Then comes para 4 of his note:
'The issue of breast-feeding was capable of being such a fact.'
I should say that the mother had indicated a wish to start breast-feeding the child. He goes on to
'If mother had been breast-feeding in hospital between 25 and 30 April 1992 I would have regarded that as very significant and after hearing further argument and perhaps evidence might have ordered the change of home requested. However it was common ground that mother had not done so.  
Some other significant fact could well emerge in the course of the welfare officer's inquiries and if so I did not want any party or the welfare officer to be in any doubt as to the desirability of the court being informed immediately.'
Then he refers to the question of the jurisdiction point which I need not consider further. 
Although there is undoubtedly no presumption of law that a child of any given age is better off with one parent or the other, and although the only legal principle involved is that the welfare of the child is the paramount consideration, no court can be ignorant of what would be the natural position if other things were equal. It hardly requires saying that a baby of under 4 weeks old would normally be with his or her natural mother. The reason why the baby was not with the natural mother in this case I have already explained. But, as I put to Mr Scott in the course of his submissions before us, there seems to me quite a close analogy here with the case of a young mother who had decided to put a baby out for adoption and repents of the decision within a day or two of the birth of the child. It would, I think, be almost common ground in those circumstances for thc baby to go back to the mother if the decision was made within a matter of a day or even a week or so. Here the position is not that of a baby being placed with prospective adopters; it is the child's natural father who has in the circumstances I have mentioned, acquired parental rights and has de facto control of the child. Nevertheless, it seems to me that the welfare of this 4-week-old baby, giving consideration to all the various factors which I have tried to mention, would normally require it to be with the mother. Having said that, it seems to me that by leaving the decision until the full hearing the judge really made his mistake, because owing to the pressure on the courts and on the welfare services - we have been told that the welfare report would take a minimum of 8 weeks, possibly 10 - with the best will in the world this case could not be heard before another 3 months or thereabouts: we are talking about the end of July/beginning of August 1992. So whichever party has the care of the child in the meantime inevitably has an in-built advantage because by the time the case comes back before the court the status quo will have assumed even greater importance than it does already.
It seems to me, having that in mind, the judge should have then considered in those circumstances which is likely to be more for the child's welfare. It seemed to me that the strongest point that Mr Scott made on behalf of the father was that the mother had already made one change of mind and it could be disastrous for the child's welfare if there were a further change of mind in the future. Miss Matthews accepted that one could not be certain of what would happen, but on the other hand the steps taken by the mother in the last week or so indicate her present state of purpose.
I appreciate fully that one side or the other is inevitably going to be disappointed by the decision here; I am afraid that always happens. But giving the matter the best consideration I can and having regard to the fact I come back to it because this seems to be the most significant factor in this case - that we are here concerned with yet 4 weeks old, that child's welfare requires that for the time being she should be with her mother.
For that reason I would allow this appeal and substitute for the order made by the judge an interim residence order in favour of the mother. Undoubtedly there should be proper and frequent contact with the father. At this stage I think it would be perhaps premature for me to indicate the degree and amount of such contact. If the parties are able to agree it, all well and good; if not, subject to anything my Lord may suggest, I would have thought that the matter could be mentioned to this court again in the next half an hour or so, so that the court, in the absence of agreement, could itself express a view as to the frequency and type of contact in the interim.
For the reasons that I have endeavoured to give, I would allow this appeal and make the order I have indicated.
LORD DONALDSON OF LYMINGTON MR: I agree. At the risk of being told by academics hereafter that my views are contrary to well-established authority I think that there is a rebuttable presumption of fact that the best interests of a baby are served by being with its mother and I stress the word 'baby' - When we are moving on to whatever age it may be appropriate to describe the baby as having become a child, different considerations may well apply. But, as far as babies are concerned, the starting-point is, I think, that it should be with its mother. That is not to say that it is not a rebuttable presumption. There are many mothers whose circumstances are such that the presumption would be rebutted; but that is not this case.
I say one other thing. The judge relied upon another principle which is very well-established and is very sensible: which is that when inquiries are being made, in order to decide what are the best arrangements to make for a child, the status quo should not be disturbed, to avoid the possibility, as Butler-Sloss LJ put it in Re H (A Minor) (Interim Custody) ~1991~ 2 FLR 411 at p 414F, of the child being treated as a package or, in more military terms, in order that there should be no order followed by counter-order leading ultimately to total disorder. All that I understand and it is well-established, but it does seem to me that the judge erred when he talked about 'preserving a status quo' which had existed merely for 3 weeks at the very beginning of this child's life. In that context, it is not really possible to establish a status quo within so short a period. That is what we are establishing now.
Appeal allowed. Substitute order below for an interim residence order for the mother with reasonable contact for the father. Contact to take place in the mother’s home one night a week and one week day a week. No order as to Costs save for legal aid taxation for appellant. Application for leave to appeal to the House of Lords refused.
Solicitors: The names of instructing solicitors. are omitted in the interest of preserving anonymity for the parties.