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England and Wales High Court (Family Division) Decisions

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Cite as: [2011] EWHC 3431 (Fam)

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This judgment is being handed down in private on Tuesday 20th December 2011 It consists of 7 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Neutral Citation Number: [2011] EWHC 3431 (Fam)
Case No: FD08P01237


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


- and -





P & L (minors)



Applicants in person
Mr. Paul Storey, Q.C. (instructed by Nicola Harries) for the Respondents
Ms Maggie Jones (instructed by Bindmans) for the children
Hearing dates: 17th and 18th November2011



Crown Copyright ©

    The Hon. Mr. Justice Hedley :

  1. This case concerns two children P and L aged respectively 10 and 6. Their biological parents are R W-B and ML but in fact both ML and AR on the one hand and RW-B and SW-B on the other are in long term, stable same-sex relationships. The children live (as they always have and as all have agreed that they should) with R W-B and S W-B (who also holds parental responsibility for both) and they live effectively as a nuclear family. The essential question in this case is the nature and extent of contact that P and L should have with ML and AR.
  2. On 29 July 2011 I gave my first judgment in this matter. That had two aims: the principal one was to determine the nature of the relationship that had both been intended and had developed between the girls and the men; the subsidiary was to make provision for interim contact. One of the few positives to be reported is that all parties have complied with that order. This judgment must be read in connexion with and as supplemental to that judgment.
  3. In my first judgment I concluded that P was suffering significant emotional harm as a result of the protracted and intense conflict between the four adults in her life. So far as I can judge, her position has improved not a whit in the interim and I remain unable to discern any basis for real hope that that can change. Happily L was comparatively unharmed but I shared the Guardian's concern as to how long that could so remain. All the evidence suggests that she has not yet suffered significant emotional harm but all the factors which underpinned the Guardian's concern remain as they were and thus I am not optimistic for L's future emotional health. They have apparently both been referred to CAMHS; given their very different experiences of contact over the last three years, I can well understand why they should receive separate treatment as, at present, both girls have very different needs even if those needs all emanate from the same source i.e. the adult conflict.
  4. In my first judgment I made it clear that, although the parties had failed to agree on their respective roles before P was born, nevertheless it had been possible to discern some shape in what had then happened. It was clear that all have agreed that the women should be the principal parents and, in particular, that S W-B would take the role of second parent which in a traditional family would have been fulfilled by the father. At the same time, whilst it was clear that the men would assume a secondary role, it was a significant one both in terms of identity and of providing the male component of parenting and of benign adult familial relationships.
  5. I appreciate that in a case like this we are in what is still new territory in defining the roles of the various parties in the context of parenting. I have tried to develop the concept of principal and secondary parents since, for reasons already explained, conventional roles provide unreliable models. The men are not separated fathers for they have never been, nor did they ever intend to be, resident parents to these girls. On the other hand they are different to grandparents for not only is ML the biological father of both girls but he holds parental responsibility in respect of them. The only safe course is to resist the almost overwhelming temptation to use established conventional models but rather to recognise that a distinct concept of parenting and parental roles is made necessary by the sort of (by no means unusual) arrangement to parent decided upon in this case. It was I think in recognition of this that Mr. Paul Storey, Q.C. on behalf of the women invited the court to give such guidance as it could. It is a tempting invitation but (beyond what I have already said) one fraught with risk.
  6. The difficulty is that there are really no restraints on what parties can choose to agree should be their respective roles. At one extreme parties freely agree that the male role will be limited to identity which need not necessarily involve any direct contact at all. At the other, a woman, particularly if single, may seek an arrangement closely aligned to an involved but separated father typical of a traditional arrangement - and, of course, anything in between. In exercising a welfare jurisdiction the court will be bound to give careful consideration and weight to any such agreement. In one sense that will not usually be an unduly difficult exercise.
  7. However, in my experience of the cases that have come before the court, the parties (as here) did not think through to agreement the role that the men were to play and, perhaps surprisingly, failed twice so to do. Accordingly the roles that are to be played have to be discerned from a combination of what was agreed and what in fact has happened since. That was the purpose of my first judgment but it means that I am dealing with a specific set of facts and other cases, even if similar, will have their own particular nuances that affect the welfare outcome.
  8. Accordingly the only guidance that I feel able to give is threefold: first to stress the importance of agreeing the future roles of the parties before the first child is born; secondly, to warn against the use of stereotypes from traditional family models and in particular to resist the temptation to squeeze a given set of facts to fit such a model; and thirdly, to provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties. Having said that, the third point must immediately be qualified by reference to any number of other factors peculiar to the case in hand which may have a significant impact upon the nature and quantum of contact which is right for those children in that case.
  9. All parties in this case recognise that, whatever their own views may be, the court will approach the issue of contact based on the court's assessment in the earlier judgment about the nature of the relationship that was in fact developing before 2008 whilst necessarily taking into account what has happened since. The difficulty is that whilst all parties give intellectual assent to that proposition, their actual proposals demonstrate that they all remain stuck where they have been for so long. The men's proposals betray an unreal expectation of the role that they are to have in the life of these girls, although of course I accept both that they are genuine proposals and that they genuinely believe that their proposals are best for these children. Likewise the women's proposals simply fail to reflect the role discerned for these men in the earlier judgment. As Mr. Storey put it: they feel that any contact order beyond their proposal is an invasion of the life of the nuclear family. In the traditional model they would have a point; that is why grandparents and other relatives usually need the permission of the court to apply for contact. But they do not have a nuclear family in the traditional sense; their model does not encompass what these parties chose to agree and do in this case even though the women are and must remain the principal parents.
  10. The consequence is that each party will be deeply disappointed with this judgment and the order subsequent upon it. That takes me back to what I said towards the end of my first judgment. There are only two ways forward: either the adults take charge of their family and agree how it is to be structured and run; or, the court imposes a structure to which the parties are required to give compliance, however grudging. The first route is solely in the gift of the parties; the second route is the function of the court in providing a default position with which, in the absence of adult agreement, the parties are expected to live.
  11. I turn then to the position of P which remains little different from that described in the quotation which opens my first judgment. I have great sympathy with the men's view that P should not be allowed to grow up full of hate and I have great sympathy with their predicament as to how they should respond to P's invitation to meet with them when it is clear that P's purpose in so doing is simply to deliver a deeply hostile message. At the same time I find myself in full accord with this aspect of the Guardian's assessment who in her evidence said that in her view the men could do no more so far as P is concerned; the emotional permission P needs to regularise her relationship with the men lies purely in the gift of the women who, at least at present, are not prepared to give it.
  12. Hence my fears for P's future emotional welfare. However, as I fear I have often said in private law proceedings, the court cannot relieve a child of all the consequences of everything that the adults in their life choose to do or not do. I cannot compel this permission. To force direct contact at present will do nothing but reinforce the hostility of both P and the women. I can do only three things: first, watch the consequences of adult intransigence play themselves out until in the absence of change, the situation demands Public Law intervention; secondly, seek to point out the consequence for this child of adult intransigence if it is persisted in for any period of time (though I fear I am unlikely to elicit more than intellectual assent); and thirdly insist both that P is invited to partake in L's contact and to keep alive as much of the relationship as is possible by indirect contact. The order at paragraph 4 of my order of 29 July 2011 should accordingly continue until further order. I share the Guardian's view that the men remain significant figures for P but that very fact, given where she is stuck, provokes hostility in her. It is a very alarming picture and it is disconcerting (but inevitable under Part II Children Act 1989) how little the court can actually do about it. That remains the responsibility of the four adults.
  13. The position in relation to L is different and there is no issue in principle as to contact between L and the men. There is, however, a profound difference (as already indicated) between the parties as to the quantum of such contact. At the heart of that dispute is the profound difference of views as the role that the men should have in the life of L and (as again already indicated) each party's conception of the appropriate role are way wide of the mark. There are, however, a number of other factors that have to be considered. I am satisfied that the men have something of a real value to offer to L in contact; a restriction on contact is not an adverse reflection on the value of that contribution but rather an acknowledgement of their proper but limited role in the life of L. Mr. Storey rightly reminds me that it is important to take account of the quantum of contact that can be agreed and supported by the women; in principle I agree. However, where (as here) they significantly underplay the proper role of the men, their views on contact cannot dictate a level of contact which is not at least a reasonable recognition of that role. That, of course, is why all parties will be disappointed with this decision.
  14. Although there is sadly no basis for believing that attitudes of conciliation designed to relieve the suffering of these two girls are likely to break out in this case, it is both necessary and proper for the court to make this point: my order is intended only to be the default position rendered necessary by adult intransigence and that by agreement the parties may arrive at any arrangements they think right whether or not such arrangements are consistent with my order. I repeat what I have said before: they are much more likely than I to know what is best for P and L; the court's order is made only because those who hold parental responsibility cannot or will not exercise it so as to obviate the need for an externally imposed solution.
  15. It follows that the contact order to be made has the primary purpose of reflecting the proper role of the men in the life of L. I cannot compel the parties to accept this position but only to comply with it. The general principle I would have applied is a weekend a month staying contact, an annual holiday in the summer and an occasional special event during the year. For reasons advanced by Mr. Storey and already referred to by me, that cannot be fully achieved yet but I propose to set a direction.
  16. Thus the basic provision will be for one weekend staying contact per month. Ideally that would involve the men in the collection from and delivery to school. However, I do not think that is achievable at present. Contact shall, until the end of July 2012, be from 5pm Friday to 5pm Sunday with the current point of handover being retained; from September 2012 (when P has left the school L attends) contact will be from the end of school on Friday to 5pm on Sunday. The parties may agree to vary the pick-up point and may decide who is to effect handover but they retain personal responsibility for ensuring that it takes place. The parties are free to agree which weekend each month contact shall take place but in default of agreement contact shall begin on the 3rd Friday of each month.
  17. I do not think a proper holiday is achievable in 2012 but in my view the contact order should reflect the court's ultimate purpose. Accordingly the staying contact in August 2012 should be extended to 5pm on the following Tuesday. It would be desirable for weekends to be agreed to take account of the special days indicated by the men for (with one exception) I do not think it right to make additional provision at this stage. The one exception is that both P and L should be invited to the men's civil partnership ceremony (and any reasonable party thereafter) and the women must make L available for contact accordingly.
  18. There have been issues about attendance at school. ML holds parental responsibility whereas AR does not. I have no objection to AR attending with ML unless (and to the extent that) it contravenes school policy. The head teacher is always the final arbiter of parents' attendance at and involvement in school. That said ML should receive school reports and photographs, should be at liberty to communicate in writing or by telephone with the school within the limits of school policy relating to parents who live apart from the child. Moreover they should be allowed to attend school once per term (other than for contact collection next year) provided that they have taken all reasonable steps to ensure that the women will not be present on the same occasion.
  19. I intend strongly to discourage further litigation as it clearly has an adverse impact on everyone and in particular on the children and their mother. The parties are well able to implement this order. I do not think it necessary to make an order under Section 91(14) of the Act. However, I propose to reserve this case to myself for the time being and to fix a review (elh 2 hours) on a date to be fixed in the week beginning 17th of December 2012. I propose further to direct that any application in the interim (other than one to enforce specifically the contact order in relation to L now made) shall be listed ex- parte for Directions (wherever I may be sitting) and shall not be served on any other party prior to such hearing. It is my present view that I should make no order as to costs.
  20. I do not propose to direct the intervention of any other professionals in this case although it is not my intention to inhibit anyone in this case from seeking any professional advice which they may wish to obtain. Any such advice will not, however, be receivable in evidence; it is for the guidance of the parties. It will be wise that if any professional intervention is sought, all holders of parental responsibility are made aware of it.
  21. It follows that I order only indirect contact in respect of P. I do so on the basis that not only is that all she could manage at present but it is paradoxically likely to be the best route to direct contact. The key to that, as the Guardian observed, is held by the women and no-one else. I have provided for direct contact for L. I know that no-one will agree with that decision. Likewise they know that they must all comply with it. I hope I have also covered the other salient issues raised in the argument and evidence. In the event, and with the agreement of all parties, only the Guardian gave oral evidence. I had extensive written evidence and oral submissions on behalf of all parties.
  22. I gave my judgment in July 2011 in open court subject to anonymity. I propose to do the same again this time. This case raises comparatively novel issues and discusses matters which ought to be capable of being debated generally. I emphasise that nothing may be said and reported which might tend to identify the children or any member of the family; I add, since this case did attract publicity, that the provision of anonymity has been scrupulously observed. Although the parties will receive a draft in advance, I propose to hand down this judgment in the week beginning 19 December 2011 in London. In the meantime I expect the parties to agree an order which will implement this judgment inserting such dates and other provisions as they can agree. I would be grateful if Counsel for the children could produce a working draft for the parties. In the event that agreement is reached, attendance at the handing down of the judgment is excused.

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