Ms A v Ms B
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 18 May 2021 |
| Neutral Citation | [2021] EWFC 45 |
| Date | 18 May 2021 |
| Docket Number | Case No: LS386/20 |
| Court | Family Court |
[2021] EWFC 45
THE HONOURABLE Mr Justice Cobb
Case No: LS386/20
IN THE FAMILY COURT
SITTING IN LEEDS (REMOTELY)
Coverdale House
East Parade
Leeds
Ms A in person
Ms B in person
Mr Alex Taylor (instructed by Local Authority Solicitor) for the Local Authority
Mr Michael George (of JWP Solicitors Limited) for the Children's Guardian
Hearing dates: 28 April 2021
Approved Judgment
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
Can two people, who are no longer in a loving relationship with each other and who were never married or civil partners, nevertheless be a “couple” under the Adoption and Children Act 2002 (‘ ACA 2002’) – i.e. “living as partners in an enduring family relationship” – so as to permit one (Ms A) to apply for an adoption order in respect of a child born to the other (Ms B), while they were in a loving relationship?
This is the important question, arising in the context of an application brought under section 51(2) ACA 2002 (‘ Adoption by One Person’), which falls for determination in these adoption proceedings.
On the particular facts of this case, where a cohesive, “integrated” 1, family life has been created by Ms A and Ms B for the subject child (Emma 2) and her older brother (Theo 3) notwithstanding the end of their loving relationship, I feel able on balance to answer the question affirmatively. Ms B is Emma's ‘parent’ in all senses of the word (genetic, gestational, psychological); there is no doubt on the evidence that Ms A is every bit as much her other psychological parent: see Re G [2006] at §39 below.
In dealing with this application, Ms A is unrepresented, as is Ms B; Ms B actively supports Ms A's application. The Local Authority, which is represented by Mr Alex Taylor, argues strongly that the ACA 2002 should be interpreted in such a way as to enable Ms A's application to proceed and supports the adoption of Emma by Ms A on welfare grounds. Mr George acts for Emma, on instructions from the Children's Guardian; the Guardian expresses no view one way or another on the interpretation of the law, but is supportive of the application for adoption (if it can proceed) on welfare grounds.
I am very conscious that no party seeks to argue against the construction of the ACA 2002 advocated by Mr Taylor. I have nonetheless endeavoured to address the possible counter-arguments in the judgment which follows.
Background facts
The outline background facts are these.
Between 2011 and 2020, Ms A and Ms B were in a fully committed, loving, and exclusive relationship. In that period, they decided to start a family. They agreed that Ms A should be the biological mother of their first-born child; through a process involving a sperm donor, Ms A became pregnant and in 2015 a son, Theo, was born. In January 2018, Ms B successfully applied to adopt Theo, and in this way, both Ms A and Ms B became in law and reality Theo's parents.
Ms A and Ms B then decided to expand their family and have a second child. They chose the same sperm donor so that their children could be biologically related. On this occasion, it was agreed that Ms B would be biological mother, and that Ms A would adopt – a reversal of the previous arrangement. Ms B became pregnant, and in 2018, Emma was born. Emma's actual given name has familial connections for both Ms A and Ms B.
Ms A's evidence is that:
“[Emma] was very much wanted by both myself and [Ms B]. We were both committed to her conception and have both played an equal role in her life from this time. I have been involved in all aspects of [Emma]'s care from birth, with the only exception being breastfeeding. This includes the sleepless nights, the hospital stays, teething, all her development leaps and her growth spurts. I continue to meet all of her needs, be those emotional, physical, behavioural and social… she calls me ‘mummy’ 4”.
Shortly after Emma's first birthday (in the summer of 2019), the relationship of Ms A and Ms B came to an end; they fell out of love and they decided to separate. In January 2020, Ms B moved out of the home; the separation was mutually agreed and amicable. On separation, they agreed to implement a shared care arrangement for the children, and this indeed has been the case for the last 16 months.
Currently Theo and Emma spend exactly half their time with Ms A (Wednesday, Friday and Saturday nights, and alternate Sunday nights), and half their time with Ms B (Monday, Tuesday and Thursday nights, and alternate Sunday nights). Ms A and Ms B have a very good relationship with each other; they are in almost daily contact with each other, they often socialise together; they plan birthday and Christmas celebrations for the children in a way which enables them to spend the day together. They help each other out with practical tasks, and on the evidence which I have seen, they flexibly operate this shared care regime to the considerable benefit of both children.
I am told that Theo and Emma, who are of course related genetically through their father, are inseparable; they have what Ms A described as a “fabulous” relationship with each other. Significantly Emma views both Ms A and Ms B as her parents, and they regard her as their daughter; all the evidence which I have seen points to the fact that Emma is a much-loved member of this family. Ms B says this:
“[Ms A] and myself made the decision to have children. Although we are not in a relationship, our parenting and friendship and caring relationship is united, and [we] unconditionally love both of our children as a family. Although we are not living together we parent our children together as separated parents would. [Ms A] has the most loving, caring, and strong relationship with both children and
are both treated the same. [Emma] and [Theo] are lucky to have such a wonderful inspirational parent….… I have adopted [Theo] and I feel [Emma] should be no different. I want the same for [Emma]; she shouldn't feel any different as [Theo]. In the upbringing of both children it is incredibly important that we have this formalised, as this is what we have both wanted – from deciding to have children that we have a family together and that [Emma] and [Theo] remain together and both children have a place in both our families”.
In June 2020 (i.e., after the end of the relationship of Ms A and Ms B), Ms A formed another relationship, with Ms C. This is a loving and devoted relationship, but they do not actually live together; Ms C, who lives about a half-hour's drive from Ms A, has children aged 7 and 11 who are in school local to her home, and she is for that reason currently loath to move. Equally, Ms A does not wish to disrupt the shared care arrangements for Theo and Emma. In the autumn of 2020 Ms A and Ms C decided to start their own family, though this has not yet come to pass. I am advised that Ms C and Ms B “get on with each other” and there have been social events at which both families have been together.
In November 2020, Ms A applied to adopt Emma.
An Annex A report has been prepared; it contains the following important passages:
“[Ms B] is completely supportive of the plan for [Emma] to be adopted by [Ms A], this has always been the plan, and [Ms B] clearly sees this as being very much in [Emma's] best interests. [Ms B] stated that [Emma] is entirely integrated into the family of [Ms A]…. They are a close family unit and enjoy spending time together as a family … [Ms B] reported that she has little contact with her [wider] family except for her father but has a close relationship with [Ms A's]. All of the family members expressed their unwavering support of this adoption…”.
The report concludes:
“I am satisfied that they are a close family unit and despite the change in relationship status, remain partners in parenting and will continue to co-parent the children. I believe they are prioritising the children's well-being and have worked out a coherent and realistic plan where the children will be cared for together across to family homes. … [Emma] is completely integrated into the family of [Ms A]. This is the only family she has ever known, and she is very much loved. …
… Although the couple are no longer in a romantic relationship I consider that they continue to have an enduring family relationship as they maintain a strong family ethic, they are working closely together, co-parenting both children as a team and have consistently considered the children's welfare as paramount. I believe they will strive to maintain a solid relationship so as to meet the needs of both children. Having met with both parents independently I believe that they share a common goal and vision as to how this will be achieved.”
The statutory regime
Section 46 of the ACA 2002 (‘Adoption orders’) provides that:
“An adoption order is an order made by the Court on an application under section 50 or 51 giving parental responsibility for a child to the adopters or adopter”.
Section 49 of the ACA 2002 (‘Applications for adoption’) provides that:
“An application for an adoption order may be made by — (a) a couple, or (b) one person, but only if it is made under section 50 or 51 and one of the following conditions is met”.
The conditions referred...
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