Re A (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir Mark Potter,Lord Justice Scott Baker,Sir Robin Auld |
| Judgment Date | 30 July 2008 |
| Neutral Citation | [2008] EWCA Civ 867 |
| Date | 30 July 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2008/0799/CCFMF NO: BA04P00442 |
[2008] EWCA Civ 867
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM RECORDER ADAM
LOWER COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Mark Potter
The President of The Family Division
Lord Justice Scott Baker and
Sir Robin Auld
Case No: B4/2008/0799/CCFMF NO: BA04P00442
Kate Branigan QC and Barbara Mills (instructed by Griffith Smith) for the Appellant
Jane Probyn (instructed by Withy King) for the Respondent
Hearing dates: 25th and 26th June 2008
Introduction
This is the appeal of a mother from an order made by District Judge Adam, sitting as a Recorder, on 11 January 2008 pursuant to a final judgment delivered on 14 August 2007 in proceedings concerning the mother's only child H, born on 17 August 2002 and now almost 6 years old. By that order, the Recorder granted to the mother's former partner, Mr A, a joint residence and parental responsibility order in respect of H as well as making provision for contact and certain other matters. H was born at a time when the mother was cohabiting with Mr A, having been conceived close to the time when they first met. For the first two years of H's life, and until the parties relationship broke down in July 2004 he was brought up by them together on the assumption that Mr A was his biological father.
Following the breakdown of the relationship, Mr A brought proceedings for parental responsibility residence and contact. He immediately applied for, and obtained, a parental responsibility order. In the course of the proceedings it emerged that Mr A was not the father of H. The biological father was in fact Mr C, with whom the mother was ending a previous relationship at the time she first met Mr A and with whom she last had unprotected intercourse in the same menstrual cycle as with Mr A.
Once it was established that Mr A was not in fact the father or parent of H, nor was he H's stepparent or guardian (see Sections 2–5 of the Children Act 1989), that meant that the only route by which he could acquire parental responsibility for H was via the provisions of s.12(2) of the Act which provides:
“Where the Court makes a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility for the child while the residence order remains in force.”
In consequence, what were already difficult proceedings between two determined people became more complicated and protracted and the issues raised between the parties more difficult to resolve. A further complicating factor was that, in the course of the proceedings, the mother, who was the primary carer of H, decided she wished to leave the area in which both parties lived close by and to move to a town on the South Coast. This meant that Mr A's regular weekly contact with H would be disturbed and, as Mr A saw it, his role in H's life would be marginalised. During the course of protracted interim proceedings the mother was restrained from moving from the area in which the parties lived, first by means of a Prohibited Steps Order and then on her own undertaking. However pursuant to the final decision of the Recorder, she has since made the move and is living with H under new contact arrangements the subject of the final order made by the Recorder.
Despite the parties having been at loggerheads throughout the proceedings, (the Recorder referred to them as chalk and cheese) it has never been an issue between them that H loves and is loved by each of them, that the mother should be the primary carer, in which role she is assiduous and child-centred, or that contact between H and Mr A is of good quality and beneficial to H, in whose life Mr A has, to date, represented the only father figure. However, since the revelation as to H's true parenthood, the mother has been unable and unwilling to recognise Mr A as having either parental rights or responsibility in respect of H. It is her case, as indeed the Recorder found, that Mr A is a dominating and controlling personality, used to and persistent in obtaining his own way and by whom the mother feels overwhelmed. It was and is the mother's case that, as H's biological mother and primary carer, it is she who should make the decisions in respect of the incidents of H's daily life and that H's needs for and benefit from contact with Mr A can be properly catered for by an appropriate contact order. She, too, the Recorder found to be determined and controlling in her desire to marginalise Mr A's role in H's life. It is her position that a joint residence order conferring parental responsibility on Mr A is inappropriate, unnecessary, and will be used by Mr A to interfere in an officious and controlling manner, productive of strife rather than harmony. It is Mr A's position on the other hand (which was the position accepted by the Recorder), that he has exercised and should continue to exercise the role of H's father and, to that end, he should be the beneficiary of a joint residence order as the only means by which, not being the biological father of H or married to the mother, he can avoid being marginalised and acquire the parental responsibility which he seeks.
The Order under appeal
In the event, the Recorder's order of 11 January 2008 provided that there should be a joint residence order in respect of H and, for the avoidance of doubt, the order granted parental responsibility to Mr A. (Indeed that was the very purpose of the joint residence order). It also provided that the mother be permitted to relocate with H to the coastal town from late August 2007 and she should make H available for contact with Mr A every alternate weekend, Mr A also having generous and detailed holiday contact as further set out in the order and a lengthy schedule attached. In broad terms the holiday periods were equally divided. It was also provided that, if H was unavailable for contact due to illness on one weekend, a replacement would be arranged for the following weekend without affecting the ongoing pattern of regular weekend contact.
The order also provided that the mother was prohibited from introducing H to Mr C, his biological father for a period of two years, save by order of the court or with the agreement of the parties; the mother in any event to provide the father with eight weeks' notice of any intended introduction.
Finally, the order provided that there be an order under S.91(14) of the Children Act 1989 prohibiting either party from bringing any further applications to court without permission until after January 2010, and that any future applications in respect of H were to be reserved to the Recorder if available. It is agreed between the parties that this provision of the order cannot stand.
In the light of the arguments raised on the appeal, the history of the proceedings, including features of Mr A's conduct relied upon by the mother as illustrative of his controlling personality, requires to be set out in some detail.
The background history
Mr A is a successful local businessman who owns a nightclub, has an interest in a public house, has other business interests and is locally well known and influential. He is now aged 56. The mother is aged 47 and prior to the birth of H was employed as an English and drama teacher. Their relationship began soon after meeting in October 2001. The mother informed Mr A of her pregnancy in January 2002. They decided they would live together and raise their child as a family. A few months later the mother moved in with Mr A and they set up home together in a large house owned by Mr A. Mr A was present at H's birth and cut the umbilical chord. He was involved as a father from the start but, according to him, the mother was reluctant to share H with him. He felt undermined by her criticism of him as a parent and excluded by her determination to continue breast feeding and remaining with H throughout the night, a situation which still prevailed in December 2005 at the time of the first judgment when H was almost 3 1/2. Nonetheless Mr A was able to establish a strong relationship with H and to care for him on his own without difficulty. According to the mother Mr A was initially enthusiastic but his interest soon waned and he wished to resume an active social life which she considered to be a detriment to herself and H.
The parties' relationship broke down in the summer of 2004 when H was just two. For a while they both remained living in the same house, which was large enough for them to live separately. Mr A immediately issued an application for parental responsibility, residence and a prohibited steps order, the last of which he obtained ex parte at a hearing without notice to the mother. Under that order she was restricted from removing H from Mr A's care until further order. At a return date on 19 July 2004, Mr A was awarded parental responsibility of H and the prohibitive steps order was discharged. The order made provision for the mother and H to remain living in the same property, albeit separately from Mr A, with generous contact provisions for three evenings per week and one day on either Saturday or Sunday of each weekend. A directions appointment was listed for 25 October 2004. However on 30 September 2004 the mother left the home and moved into rented accommodation. She had had a violent argument with Mr A at a party and shortly afterwards discovered a pile of video tapes in the basement, the product of CCTV surveillance by cameras covertly installed by Mr A in the rooms occupied by the mother and H, each...
To continue reading
Request your trial
-
Re W (Shared Residence Order)
... ... He had had a difficult background and he had committed the section 18 and section 20 offences just over a year after he was placed on the Child Protection Register ... 24 Reliance is also placed on R v AS [2008] EWCA Crim 1318 , in which the Court of Appeal was concerned with a 15 year old who had received a sentence of detention for public protection in respect of two counts of robbery and one of attempted ... ...
-
T v B
...as Hallett LJ pointed out, both their biological and their psychological parent." 35 In Re A (Joint Residence: Parental Responsibility) [2008] 2 FLR 1593, a mother appealed against a joint residence and parental responsibility order. The order had been made in favour of a man with whom the ......
-
A v G & N
...EWCA Civ 370, which in turn refers to the slightly earlier decision in Re A (a child) (joint residence: parental responsibility) [2008] EWCA Civ 867, [2008] 3 FCR 107. 186 With all respect to Dr Pelling none of this helps me at all. The question is whether I should make some declaration 'cl......
-
Holmes-Moorhouse v Richmond upon Thames London Borough Council
... ... 7 Shared residence orders are not nowadays unusual. They do not necessarily provide for the children to spend equal time with each parent. In the recent case of In re A (A Child)(Joint Residence: Parental Responsibility) [2008] 3 FCR 107 the Court of Appeal approved the practice of making a shared residence order in order to confer parental responsibility upon a man who was not the natural father, even though the child actually stayed with him only on alternate ... ...
-
A review of the developing law on residence, contact, prohibited steps and specific issue orders under section 8 of the Children Act 1989
...used for the purpose of allocating parental responsibility. This was clearly held in Re A (Joint Residence: Parental Responsibility) [2008] EWCA Civ 867, [2008] 2 FLR 1593 where again a man discovered that the child born during his cohabitation with the mother was not in fact his. In this c......
-
ENGLISH COURTS' TREATMENT OF THE CHILDREN OF SAME‐SEX COUPLES
...1 FLR 1015Re J (A child)(Custody Rights: Jurisdiction) [2006] 1 AC 80 @ para.37 and 38Re A (Shared residence: Parental Responsibility) [2008] EWCA Civ 8671886 1925 1967 1969 1977 1981 1983 1988 1989 1990 1993 1994 1997 1998 2000 2002 2004 2005 2006 2008Guardianship of Infants Act 1886Guardi......
-
Family Law
...Rev 464 at 469–471, paras 16.17–16.21. 6 BNS v BNT [2015] 3 SLR 973. 7 See D v D [2001] 1 FLR 495, A v A [2004] All ER (D) 54 and Re A [2008] 2 FLR 1593. 8 See (2010) 11 SAL Ann Rev 368 at 375, para 15.20, (2011) 12 SAL Ann Rev 298 at 301, para 15.9 and (2012) 13 SAL Ann Rev 299 at 304, par......