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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> G (Shared Residence Order : Biological Mother of Donor Egg) [2014] EWCA Civ 336 (25 March 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/336.html Cite as: [2014] 2 FLR 897, [2014] EWCA Civ 336 |
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ON APPEAL FROM PORTSMOUTH COUNTY COURT
HER HONOUR JUDGE
BLACK
BK13P00247
Justice![]() Strand, London, WC2A 2LL |
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B e f o r e :
JUSTICE
MOSES
LADY JUSTICE BLACK
and
LORD
JUSTICE
KITCHIN
____________________
| RE G CHILDREN |
____________________
Miss Rebecca Foulkes (instructed by Family Law in Partnership) for the Respondent
Hearing dates : 22nd January 2014
____________________
Crown Copyright ©
Black
LJ:
Black
was wrong to refuse to grant a shared residence order in relation to them. The reason why the appellant sought such an order was because it would bring with it parental responsibility for the twins which she does not otherwise have.
Parentage
Factual background
"The [appellant] does not have my daughters' best interests as her priority and focus, and apart from the prospect of a contact order to have my daughters remain in contact with the [appellant] and her family, which I have not resisted subject to the detail and monitoring the [appellants'] behaviour in going forward, the [appellant's] application is without merit."
The appellant, for her part, criticised the respondent's care of the children for various reasons and asserted that the children come second behind the respondent's work and that the respondent was trying to push her out of their lives.
The hearing before HHJ
Black
Black
on 4 July 2013 for a hearing to settle the interim contact arrangements, pending a three day hearing scheduled for the end of August 2013, they managed to resolve much that was in dispute between them.
The respondent's notice
The issues on the appeal
Discussion
Black
's order and remitting the matter for rehearing, I thought it might be of assistance to gather together some of the learning that is available even though, in order to do so, I have departed from the parties' submissions and relied on my own research.
Legal parenthood
Parental responsibility; shared residence orders
"Parental responsibility is a question of status and is different in concept from the orders which may be made under section 8 in Part II of the Children Act. The grant of the application declares the status of the applicant as the father of that child. It has important implications for a father whose child might for example be the subject of an adoption application or a Hague Convention application. In each of those examples, a father with parental responsibility would have the right to be heard on the application. He would have the right to be consulted on schooling, serious medical problems, and other important occurrences in a child's life."
"a child needs for its self-esteem to grow up, wherever it can, having a favourable positive image of an absent parent; and it is important that, wherever possible, the law should confer on a concerned father that stamp of approval because he has shown himself willing and anxious to pick up the responsibility of fatherhood."
"§27 …. The status conferred by parental responsibility is an important legal recognition of the delicate balance between the rights, duties, powers, responsibilities and authority that are the components of family and private life. It is integral to the concept of parental responsibility. It is not, however, a separate 'stand alone' factor, let alone a presumptive factor to be weighed alongside other Re S (Parental Responsibility) factors in the welfare consideration of whether a parental responsibility order should be made. The status of parental responsibility underlies the authorities and the guidance….."
Black
's decision was the "question mark over how [the appellant] may operate her parental responsibility if she were given it". The authorities show that parental responsibility can be refused where it is feared that it will be misused. The early authorities might have given one to think that this was not appropriate, see for example Re S (supra, at 657) where, Ward LJ said that the possibility of parental responsibility being used to interfere with the day to day management of a child's life had "nothing to do with" whether a parental responsibility order should be made as orders under section 8 of the Children Act could be used to control any abuse of parental responsibility. However, over time, there have been examples of parental responsibility being denied because it was likely to be misused. A recent example is Re M (Parental Responsibility Order) (supra) in which the Court of Appeal upheld the judge's refusal of parental responsibility to a father who the judge had found would misuse it in ways which would undermine both the child and the child's mother.
"In the end the only principle is the paramountcy of child welfare." (§23 and see also §39)
Consideration of the issues arising in this appeal
Black
did not hear any live witnesses, this court is, unusually, in no worse position than she was to evaluate the relevant evidence on this subject. I have read the papers that were available to the judge and upon which she based her view that, on the one hand, there had not been (and would not be) inappropriate marginalisation of the appellant by the respondent but, on the other, there was a risk of the appellant misusing her parental responsibility. The passage from the respondent's statement which I quoted at §11 of this judgment represented the respondent's view less than a week before the judge arrived at her determination. It is in terms which do not offer a great deal of reassurance as to the role that the respondent saw for the appellant in the future. I am not sure that the position was necessarily significantly improved by the respondent's agreement to a traditional contact arrangement and to the provision of information to the appellant, which the judge took as a recognition by the respondent of the importance that the appellant has in relation to the children. The appellant for her part had also made a concession which might be thought to have had considerable significance, that is to say that she was no longer seeking to have the children living with her for the majority of their time and would be content with the contact/information provisions that were agreeable to the respondent; it is unclear whether the judge took into account the possible implications of that.
Black
took the view that the respondent recognised the importance that the appellant has in relation to the children but the judge did not articulate the ways in which the appellant is important. The impression from her judgment is that she was concentrating upon the importance of the appellant as someone the children would see for contact (see for example §9). I think there needed to be consideration given also to the appellant's importance as the children's genetic parent and as the mother of their full sibling, D, with whom they will form a relationship through contact. As they grow up, the children will appreciate the significance of both of these roles. This case demonstrates, as did Re G; Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders) (above), the tension between legal parenthood and biological parenthood. Here, however, the tension is probably even more marked than it was there, given the presence of D in the equation and given that, whether one works on the appellant's version of the twins' first years or the respondent's, the appellant played a large part in their early day to day care. Another factor contributing to the complexity may be that C now has parental responsibility for the twins. I entirely appreciate why this was thought appropriate, in view of her role in their day to day lives and as their mother's civil partner, but some consideration may need to be given to whether it might be material to a decision as to what is in the twins' best interests that in their lives there would be a non-biological parent with parental responsibility and a biological parent without it.
Black
dealt with the question of whether there was an intention that the women would be bringing up the children as joint parents, concluding that as they had not taken the opportunity that was available to them to be joint parents of D, they did not intend this. The judge's inference may turn out to be correct but one proposition does not necessarily follow from the other as the relationship between the women was different by the time D was conceived. The judge went on to reason that because there was no question of the respondent sharing parental responsibility of D, "it would seem on that basis alone, to be wrong that she should expect to share responsibility for [the respondent's] children". I do not accept that reasoning. The decision as to whether a shared residence order was made in relation to the twins was governed by their welfare. Equality between the adults in relation to all their three children was not to the point except in so far as it may affect the children's welfare. It would be well to keep in mind the observations of Thorpe LJ in A v B and C (Lesbian Co-Parents: Role of Father) (supra) about the relevance of preconception intentions and other adult plans.
Black
but would invite them to make submissions about this immediately following the circulation of the draft judgment. Counsel should feel free to disclose to the parties the bare bones of our decision in order that they can discuss this question with them.
"Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in this way is likely to remain with the children into their own adult lives."
I think the parties realised this when they reached the agreement that they did in front of Judge
Black. I am sorry that the arrangements fixed that day cannot stand in their totality. But further agreement is still an option.
Kitchin LJ:
Moses LJ: