Re A (A Child: Application for leave to apply for a child arrangements order)

I have before me an application for leave to apply for a child arrangements order. The application concerns a young girl, Alice. Alice is 9 years old.

In Re G (Children) [2014] EWCA Civ 336, Black LJ observed that 'Families are formed in different ways these days and the law must attempt to keep up and to respond to developments'. Alice's story is an example of the different ways in which modern family life is formed. Modern family life can be complicated.

Principal characters

Rachel is Alice's biological mother. Alice was conceived by donor insemination with sperm from a known donor. At the time of conception Rachel was in a same-sex relationship with Helen.

David is Alice's biological father. At the time Alice was conceived David was in a same-sex relationship. That relationship broke down some years ago. David now lives abroad. David does not have parental responsibility for Alice.

In 2006, shortly before Alice was born, Rachel and Helen entered into a civil partnership. In 2009 they separated. At the time of their separation Rachel was suffering from serious mental illness. She was diagnosed as suffering from schizophrenia and schizoaffective disorder. She was detained under s.3 of the Mental Health Act 1983 and placed in a secure unit.

Since Rachel and Helen separated Alice has been cared for by her non-biological mother, Helen. In 2009 Helen applied to the court for a residence order. An order was made by consent.

At the beginning of 2009 Helen formed a relationship with Matthew. Alice was then aged 3. A few months later, Matthew moved in to live with her. Matthew is a female to male transsexual. At the commencement of his relationship with Helen he was at the beginning of the transition process.

Helen and Matthew separated in February 2013. By then Matthew had completed the transition process.

Since they separated there has been some contact between Matthew and Alice. That contact ceased in July 2014.

Matthew has now formed a relationship with James. Matthew and James live together.

There are two other relevant adults whom it is appropriate I should mention. Helen has two older children from a previous marriage, Lucy and Susan. They are full siblings. Both are now adults. Although Lucy is living at home she was not living at home when Matthew was there. Susan has always lived with her mother. She has physical and learning difficulties. She is supported by a social worker and has carer support at home.

The application

When Matthew cohabited with Helen he played a part in caring for Alice. He now wishes to resume his relationship with Alice and have contact with her. He applies to the court for leave to apply for a child arrangements order.

Because of the exceptional circumstances of this case, I made Alice a party to the application and appointed an officer of Cafcass to be her children's guardian ('the guardian').

Health considerations

I have already referred to Rachel's mental health difficulties. Helen and Matthew also suffer from mental health difficulties. Although there is no independent expert medical evidence before me, Helen and Matthew have each produced a brief medical report, Matthew from his treating psychiatrist and Helen from her GP. Helen has also produced a report from her community psychiatric nurse.

Helen has a primary diagnosis of emotionally unstable personality disorder. She also has a longstanding history of anxiety and depression. She has suffered from fibromyalgia for a number of years. Her GP reports that,

'She is currently on a long list of medication…The main problem is around pain and mood. In addition she has had difficulties with obesity and has had gastric bypass surgery resulting in a significant weight loss. Her physical and psychological state is such that any form of emotional trauma is likely to upset her condition medically.'

Helen's mobility is limited. She has support from local authority carers in addition to the carer support provided for Susan.

Matthew suffers from Non-epileptic Attack Disorder, the emotional consequences of past abuse and other depressive and anxiety symptoms. He continues to experience brief non-epileptic seizures which his psychiatrist considers to be stress related. His psychiatrist says that he,

'is emotionally the best I have seen him in the last few years. He has progressed with psychotherapy and medication and his mood is generally stable. He still has emotional fluctuations when he is stressed but these are minimal and he manages them quite well with very little impact on his functioning.'

Following an assessment by the Child and Adolescent Mental Health Service ('CAMHS') in 2014, Alice was diagnosed with Autism spectrum disorder. She continues to be supported by CAMHS.

If leave is granted consideration will then be given to Matthew's substantive application for a child arrangements order. It is likely that expert psychiatric evidence will be necessary in order to resolve that application justly.

Local Authority involvement

Upon Matthew issuing this application Cafcass undertook the usual safeguarding checks. The Cafcass safeguarding report revealed local authority intervention and support for Alice's family. The local authority has 'received numerous referrals and enquiries' in respect of Alice. Between July 2008 and January 2009 Alice was the subject of a child protection plan. In late 2014 Children's Services participated in a multi-agency meeting to identify support services for Alice and 'to give consideration to whether she is also a "Young Carer."'

If Matthew's application is allowed to proceed it will be necessary to obtain disclosure of documents from the local authority in order to gain a fuller picture of the local authority's involvement with this family and of its concerns.

Matthew's relationship with Alice

Matthew and Helen lived together from May 2009 until February 2013. Each accuses the other of inappropriate behaviour. Matthew says that their relationship 'was verbally and emotionally abusive'. Helen says that Matthew was 'controlling and verbally and mentally abusive' towards her.

According to Helen, she and Matthew did not live together continuously throughout the period from May 2009 to February 2013. She says that during the course of his transitioning Matthew,

'was struggling with the effects of testosterone, which caused him to be short tempered and aggressive…it was agreed that he should [move out] until this settled down. The Applicant subsequently spent several months in emergency accommodation…and spent a period of time staying at his father's address.'

Although he was at the beginning of the process of transition at the time his relationship with Helen began, Matthew says that Alice has only ever known him as a man although she was aware that he was transitioning from female to male. This was explained to her in an age-appropriate way.

Whilst Matthew and Helen were cohabiting. Alice began to call herself Daniel and stated that she was a boy. Some days she would wear clothes usually chosen by boys. There were times when she avoided playing with gender appropriate toys. Helen was very concerned about this. She felt that Matthew was encouraging this behaviour. Matthew denies that that was the case. Helen says that this behaviour has stopped since she and Matthew separated.

After moving in to live with Helen, Matthew became actively involved in Alice's care. He regularly took her to nursery. He was named in nursery records as a key contact person. Alice began to call him 'Dad'. She sent him Father's Day cards each year. He says that he and Alice 'became inseparable'; that he and Helen 'co-parented', working together 'as a parenting team'; that he 'took on a dominant parental role'; and that he became 'a primary figure' in Alice's life.

Through her counsel, Helen accepts that whilst living with Matthew, Alice was a child of their family. She accepts that Matthew played a part in caring for Alice, though she does not accept that it was as extensive as Matthew claims. She also accepts that Alice would call him 'Dad' though she makes the point that Alice is aware that David is her biological father.

After his separation from Helen, Matthew continued to spend time with Alice and with Susan (for whom he also claims to have been a father-figure). This included both day time contact and, on occasions, overnight contact. However, arrangements did not always run smoothly. Both Helen and Matthew describe the arrangements as, at times, 'sporadic'.

In June 2014 Matthew moved in to live with his current partner, James. Helen was unhappy at the prospect of Alice staying overnight with Matthew and James. The next month the contact arrangements broke down. Matthew has not spent time with Alice since 23 ^rd July 2014.

According to Matthew the circumstances in which contact broke down were acrimonious. He says that he and his partner, James, returned Alice and Susan to Helen's house on the evening of 23 ^rd July. Helen was not there. She arrived a few minutes later. She had been out drinking with her carer. Matthew says that upon her return he 'was on the receiving end of 45 minutes of verbal abuse'. Later that same evening he received 'an abusive email…saying that contact would never be resumed'.

There are significant factual differences between Helen and Matthew. If Matthew's proposed application is allowed to proceed, it will be necessary for the court to hear oral evidence and make findings in respect of some of the disputed factual issues.

Alice's current...