Re A (A Child) (Joint Residence: Parental Responsibility)

JurisdictionEngland & Wales
Judgment Date2008
Date2008
CourtCourt of Appeal (Civil Division)

Family proceedings – Orders in family proceedings – Parental responsibility order and contact order – Mother leading A to believe he was father of child – A granted parental responsibility following separation – Whether recorder erring.

The mother and A separated in July 2004 when the child, H, was two. Until that date H had been brought up by them on the assumption that A was the biological father. In the course of contact proceedings it emerged that A was not the father of H. On 11 January 2008, the recorder, inter alia, made a joint residence order in respect of H and granted parental responsibility to A. The mother appealed. She argued, inter alia, that the recorder had erred in principle and as a matter of law in his overall approach with the result that he had made a series of orders that were fundamentally flawed. Specifically, it was said that the recorder had failed to give proper weight to the position of the mother as the child’s natural and legal parent as against A, who was not, and the impact on H’s overall welfare.

Held – The making of a residence order was a legitimate means by which to confer parental responsibility on an individual who would otherwise not be able to apply for a free-standing parental responsibility order, as in the case of someone who was not the natural parent. The recorder’s decision, taken in the round, had not undermined the mother’s position as biological parent. The purpose of the order was to require the mother, as biological parent, to recognise the role of A as H’s social and psychological parent in circumstances where she had engineered and recognised his role as a father prior to their separation. Accordingly the appeal would be dismissed; Re G (residence: same-sex partner)[2006] 1 FCR 436 applied; Re D (children) (shared residence orders)[2001] 1 FCR 147, A v A (children) (shared residence order)[2004] 3 FCR 201, Re F (children) (shared residence order)[2003] 2 FCR 164, Re H (Shared Residence: Parental Responsibility)[1996] 3 FCR 321 considered.

Cases referred to in judgments

A v A (children) (shared residence order)[2004] EWHC 142 (Fam), [2004] 3 FCR 201, [2004] 1 FLR 1195.

D (children) (shared residence orders), Re[2001] 1 FCR 147, [2001] 1 FLR 495, CA.

F (children) (shared residence order), Re[2003] EWCA Civ 592, [2003] 2 FCR 164, [2003] 2 FLR 397.

G (residence: same-sex partner), Re[2005] EWCA Civ 462, [2006] 1 FCR 436, [2005] 2 FLR 957.

G (children) (residence: same-sex partner), Re[2006] UKHL 43, [2006] 3 FCR 1, [2006] 4 All ER 241, [2006] 1 WLR 2305, [2006] 2 FLR 629.

Ghaidan v Godin-Mendoza[2004] UKHL 30, [2004] 2 FCR 481, [2004] 3 All ER 411, [2004] 2 AC 557, [2004] 3 WLR 113, [2004] 2 FLR 600.

H (Shared Residence: Parental Responsibility), Re[1996] 3 FCR 321, [1995] 2 FLR 883, CA.

Hodak v Newman (1993) 17 Fam LR 1, FLC 92–421, Aus Fam Ct.

J v J (Property Transfer Application)[1993] 1 FCR 471, [1993] 2 FLR 56.

Appeal

The mother appealed from the order made by District Judge Adam, on 11 January 2008 pursuant to a final judgment delivered on 14 August 2007 in proceedings concerning the mother’s six year-old child, H. 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. The grounds of appeal contend that the recorder erred in his overall approach to the applications before the court with the result that he made a series of orders which are fundamentally flawed both in principle and in law. The facts are set out in the judgment of Sir Mark Potter P.

Kate Branigan QC and Barbara Mills (instructed by Griffith Smith) for the mother.

Jane Probyn (instructed by Withy King) for Mr A.

SIR MARK POTTER P. Introduction

[1] 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.

[2] 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.

[3] Once it was established that Mr A was not in fact the father or parent of H, nor was he H’s step-parent or guardian (see ss 2–5 of the Children Act 1989 (the Act)), 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: ‘[w]here 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.’

[4] 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.

[5] 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

[6] 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.

[7] 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.

[8] Finally, the order provided that there be an order under s 91(14) of the Act 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...

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2 cases
  • Holmes-Moorhouse v Richmond upon Thames London Borough Council
    • United Kingdom
    • House of Lords
    • February 4, 2009
    ...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 wa......
  • A v G & N
    • United Kingdom
    • Family Division
    • July 17, 2009
    ...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 'clarifying' the ......

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