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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> X, Re (No 2: Application for contact by the biological father) [2015] EWFC 84 (13 November 2015) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2015/84.html Cite as: [2015] EWFC 84 |
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SITTING IN THE ROYAL COURTS OF JUSTICE
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
JK |
Applicant |
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- and - |
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HS and KS |
1st & 2nd Respondents |
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- and - |
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X By Her Children's Guardian |
3rd Respondent |
____________________
HS & KS in Person
Mr Nicholas Anderson (instructed by Cafcass Legal) for the 3rd Respondent
Hearing dates: 9th, 12th & 13th November 2015
____________________
Crown Copyright ©
Mrs Justice Theis DBE:
Introduction and Summary
Legal Framework
"If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership, then subject to section 45(2) to (4), the other party to the civil partnership [in this case KS] is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be)."
At the material time KS and HS were in a civil partnership and KS consented to the procedure that was undertaken.
"Where a child –
(a) has a parent by virtue of section 42 of the Human Fertilisation and Embryology Act 2008… the child's mother and the other parent shall have parental responsibility for the child."
As legal parents for K, HS and KS are the only people in law who can be recorded on X's birth certificate.
"Where a woman is to be treated by virtue of section 42 or 43 as a parent of the child, no man is to be treated as the father of the child."
"(2) Where, by virtue of section 33, 38, 41, 45 or 47 a person is not to be treated as a parent of the child, that person is to be treated in law as not being a parent of the child for any purpose.
(5) Where any of the subsections (1) to (4) has effect, references to any relationship between two people in any enactment, deed or other instrument or document (whenever passed or made) are to be read accordingly."
Relevant Background
The Evidence
He continues in his statement 'I feel X and I have a simple human right to spend a reasonable amount of time together.' He continues in that statement outlining what he sees as his role to 'support X emotionally and physically throughout her childhood into adulthood….I would be a positive father role model for X. I would encourage confidence and a brave character in her personality and to be challenging, prodding, playful and physically active…I can help provide a healthy self-esteem for X, which I feel is valuable for her psychological well being. I could teach X life skills, self-respect and self-confidence…I believe children will approach their mothers and fathers for different issues that they need advice for, we will be depriving X of that option if she does not have access to a father role model such as myself. I would like X to meet and build relationships with her biological family and her vast family in laws when X and I are married. The more people that are able to show X love, support and comfort is clearly for the better.'
Submissions
Discussion and Decision
'Human emotions are powerful and inconstant. What the adults look forward to before undertaking the hazards of conception, birth and the first experience parenting may prove to be illusion or fantasy'. This case is another illustration of parties who enter into such arrangements being unprepared for the unexpected emotional consequences that inevitably flow from them.
'..the Respondents will not give X the choice to get to know me without Her Ladyship granting the Child Arrangements Order. I can become one of X's primary carers once she forms an attachment with me, children adapt well to new environment, X being at this young age will make the transition a lot easier'. That message could not be clearer. In addition, it comes with the additional insidious message that X's needs are not being fully met by HS and KS.
(1) X is too young to express any views about contact with JK. She has no existing relationship with JK.
(2) All her physical and emotional needs are being met by the excellent care being provided by HS and KS. She is wholly dependent on them.
(3) Any direct contact between X and JK would bring little positive benefit to X and it would put at risk the security of her placement, both in the short and long term. Infrequent direct contact will not maintain any existing relationship between X and JK and would very likely lead to the expectation by JK that it should increase. Any direct contact would be against the express wishes of HS and KS and that may further undermine X's secure placement with them.
(4) JK's view about his future role in X's life as being, in effect, akin to that of a separated parent will undermine X's security of placement with HS and KS, such that it could adversely impact on her welfare. She would very likely pick up on negative messages from JK about HS and KS which would risk causing her emotional harm.
(5) JK's lack of insight and focus on his rights and the adult conflict without considering the reality of X's position and those who care for her, make the prospect of any sustainable change in his behaviour very unlikely. This is supported by his somewhat over simplistic view that they can put the past behind them with professional help.
(6) X's need for information about her genetic background can be met by a combination of indirect contact and the recognition by HS and KS of the need for X to have this information and knowledge.