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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> X & Anor v B & Anor [2022] EWFC 129 (28 October 2022) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2022/129.html Cite as: [2022] EWFC 129, [2022] WLR(D) 456, [2022] 4 WLR 113 |
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Sitting at the Royal Courts of Justice
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
X |
1st Applicant |
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- and - |
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Y |
2nd Applicant |
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- and - |
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B |
1st Respondent |
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- and - |
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G (Through His Children's Guardian Mark Verity) |
2nd Respondent |
____________________
Ms Shabana Jaffar (Cafcass Legal) for the 2nd Respondent
The 1st Respondent did not attend
Hearing date: 28th October 2022
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Crown Copyright ©
Mrs Justice Theis DBE:
Introduction
Relevant Background
Section 54 Human Fertilisation and Embryology Act 2008 (HFEA 2008)
(1) Whether the applicants are living as partners in an enduring family relationship (s54(2)).
(2) Whether the court should permit the application to proceed as it was made more than six months after the birth of G (s54(3).
(3) Whether G had his home with the applicants at the time when the applications was made and when the court is considering making the parental order (s54(4)(a)).
(4) If the s54 criteria are met, whether the making of the parental order will safeguard G's lifelong welfare bearing in mind the circumstances of this case.
Enduring family relationship
'On the information the court has it is clear the applicants are in a committed relationship, their intention is to remain in that relationship and as soon as circumstances permit, to live together full time. They spend such time as they are able to together, remain in regular contact when they are not together and are obviously committed to each other and X.'
Timing of the application
Child's home with the applicants
(1) Following the applicants separating - In Re X (a child) (surrogacy; time limit) [2014] EWHC 3135 the intended parents were separated and living in separate homes. Munby P ruled that [paragraph 67]: "X had his home with the commissioning parents, with both of them, albeit they lived in separate houses. He plainly did not have his home with anyone else." This rationale was subsequently followed in Re A and B (No. 2 – parental order) [2015] EWHC 2080 (Fam) and in K v L (2019) EWFC
21.
(2) Where the applicants were in a relationship but had never lived in the same home - In Re DM and LK [2016] EWHC 270 (Fam) a parental order was made in favour of applicants who had never co-habited (although were planning to do so); in Re X (a child) (2018) EWFC
15 a parental order was made in favour of applicants in a platonic marriage who had never co-habited and had no intention of doing so.
(3) Where the children were living separately from the parents but in a home provided by them - In Re Z (foreign surrogacy; allocation of work; guidance on parental order reports) (2015) EWFC
90, a parental order was made in favour of applicants who at the time of the application had arranged a home for their children in India but were not living with them.
(4) Following one of the applicants dying - In A v P (2011) EWHC 1738, the applicant father died during the course of a parental order application, so that the child (who initially lived with both applicants) only had his home with the applicant mother by the time the order was made. In Re X (2020) EWFC 39 the applicant father had also died, although this time during the course of the pregnancy (so that the child did not have her home with him either at the date of the application or the order).
Domicile
Welfare
"[G] is too young to be aware of this application or to express his view about the decision the Court needs to make for him. In my view he will have developed a secure attachment to both [Mr Y] and [Mr X] (and to [Mrs X]), who have separately and together cared for him for all his life, and so would wish that shared care to remain in place."
A little later in his report he states
"[G's] needs are those of any other child of a similar age. He needs to be cared for in a nurturing, stable and safe environment where his emotional, physical and educational needs are met consistently by the important adults in his life. He needs to be encouraged to live a healthy lifestyle, should receive adequate and appropriate stimulation and be surrounded by unconditional love and acceptance with clear and consistent parental boundaries. [Mr X] and [Mr Y] have demonstrated that thus far they have been able to meet these requirements well given that [G] has moved to and from between two homes in two countries. They share the values of parenting."
Concluding
"[G] has in my opinion been receiving a good standard of practical and emotional care, and all of his needs are in my view being met to as good a standard as can be achieved given the rather complex circumstances….they [Mr X and Mr Y] have been consistent and particular in ensuring that they co-parent which I expect [G] will have sensed, and so are likely to continue to do so….[Mrs X] has been content for her husband to maintain his relationship with [Mr Y] and for the two males to continue to raise [G] together, supporting them where needed.".