Re G Children
| Jurisdiction | England & Wales |
| Judge | Black LJ,Kitchin LJ,Moses LJ |
| Judgment Date | 25 March 2014 |
| Neutral Citation | [2014] EWCA Civ 336 |
| Docket Number | Case No: B4/2013/2104 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 March 2014 |
[2014] EWCA Civ 336
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
HER HONOUR JUDGE BLACK
BK13P00247
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Lady Justice Black
and
Lord Justice Kitchin
Case No: B4/2013/2104
Mrs Jane Campbell (instructed by Evans Main) for the Appellant
Miss Rebecca Foulkes (instructed by Family Law in Partnership) for the Respondent
Hearing dates : 22 nd January 2014
This appeal concerns twin girls ("the twins") who were born in the summer of 2008 and are therefore now 5 years old. The issue is whether Her Honour Judge Black was wrong to refuse to grant a shared residence order in relation to them. The reason why the appellant sought such an order was because it would bring with it parental responsibility for the twins which she does not otherwise have.
The appellant and the respondent, who is the twins' mother, met in the 1990s. Initially, they had an intimate relationship. At some point, the relationship became platonic but they continued to share a house until October 2012. The respondent says that before the twins were born, they had ceased to be in a relationship and were simply living together as close friends; the appellant considers that the relationship continued until the autumn of 2012.
Parentage
I need to explain the parentage of the twins. Following unsuccessful attempts by the respondent to conceive using her own eggs, the appellant agreed to donate eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous donor. The embryos were implanted in the respondent who carried and gave birth to the twins.
Some embryos remained and one was used to enable the appellant to carry and give birth to her daughter, D, in November 2012.
The appellant is therefore genetically the mother of D and the twins and the children all have the same father; biologically, they are full siblings. The appellant is also, in law, D's mother. However, she is not the twins' mother. By virtue of section 27(1) Human Fertilisation and Embryology Act 1990, the respondent is the twins' mother.
Factual background
The proceedings have precipitated long and detailed statements from the parties in which each set out her perception of their joint history, of the steps taken to conceive the twins, and of the upbringing of the children. The statements date from June 2013 and were prepared in the context of what was then a wide ranging dispute between them. The appellant's applications at that time included an application for an order that she should be the twins' main carer which was fiercely resisted by the respondent. There has not been a hearing at which evidence has been given and findings made which would provide us with a firm factual foundation. I will therefore attempt to describe the history as neutrally as I can, avoiding straying too much into disputed territory.
After the twins were born, the respondent had some months of maternity leave and then went back to work. In mid-2010, she changed jobs in order to have more flexibility to work from home sometimes so that she could spend more time with the children.
The appellant had the opportunity to take redundancy from her job and did so in early 2008. She was therefore able to stay at home and to look after the children whilst the respondent was at work. The respondent says of this that the appellant "continued to live with me as a friend and assisted me in the early years with my daughters and housekeeping". The appellant, in contrast, paints a picture of herself as the main carer for the twins, describing herself as "the homemaker" whilst the respondent was "the provider". As counsel for the appellant put it in her skeleton argument for this appeal, her case is that she is "the genetic and psychological parent". The twins grew up calling the respondent "mummy" and calling the appellant by a pet name derived from her first name.
Even the appellant says that there was increasing strain between the parties from 2011. It is clear from both parties' statements that by the middle of 2012, things had become very difficult between them. The respondent had formed a new relationship with C who is now her civil partner. There were what may best be called "scenes" as the friendship between the parties came to a final end.
Since the final parting, the twins have lived with the respondent but the appellant has remained part of their lives, continuing to be part of the arrangements for their regular care for a few months and thereafter having contact with them, including staying contact. C is also part of their lives and seems to be involved in their care, for example regularly collecting them from school. C has parental responsibility for the twins by virtue of a parental responsibility agreement with the respondent.
At the time they filed their statements, each party was mistrustful of the other. The respondent said, for example, that the appellant's application was motivated by malice, selfish interest and revenge. The introductory paragraphs of her statement (which is dated 29 June 2013) include this assessment of the appellant's position:
"The [appellant] does not have my daughters' best interests as her priority and focus, and apart from the prospect of a contact order to have my daughters remain in contact with the [appellant] and her family, which I have not resisted subject to the detail and monitoring the [appellants'] behaviour in going forward, the [appellant's] application is without merit."
The appellant, for her part, criticised the respondent's care of the children for various reasons and asserted that the children come second behind the respondent's work and that the respondent was trying to push her out of their lives.
In May 2013, shortly after the commencement of the proceedings, the appellant suggested that she was going to see if she could have her story published in the press. Dealing with this in her statement, she said that she had been chatting with a freelance reporter at a wedding reception and the reporter had been interested in making a story of her situation but, on taking legal advice and taking the views of her parents into consideration, she would not have pursued the matter. The respondent's response was that this was calculated to distress her personally and embarrass her professionally.
The hearing before HHJ Black
Against this background of mistrust, it was to the parties' enormous credit that when the case came before Her Honour Judge Black on 4 July 2013 for a hearing to settle the interim contact arrangements, pending a three day hearing scheduled for the end of August 2013, they managed to resolve much that was in dispute between them.
The appellant conceded that she would not pursue a sole residence order. The judge then gave the parties time to discuss contact and this resulted in an agreement for the appellant to have substantial contact including alternate weekends during term time, a telephone call on the intervening weekend, and additional staying contact during school holidays. What remained in debate was whether a shared residence order should be granted so as to give the appellant parental responsibility for the twins, there being no other way in which she could acquire parental responsibility.
The respondent acknowledged that the appellant is an important adult in the children's lives, that they have spent considerable periods of time with her and her family, and that this should continue. She was prepared to agree to provide the appellant with information about the children's education, including such matters as their progress at school and the dates for any significant events such as sports days and concerts but not parents' evenings. She also agreed to provide the appellant with information about any significant medical issues affecting the children and to delegate parental responsibility to the appellant during the periods when she had contact to enable her, if necessary, to arrange emergency medical treatment for them. Further than that, she would not go.
Not wishing to put themselves through the emotional and financial cost of further contested proceedings, the parties asked the judge to deal with the remaining dispute on the basis of submissions there and then and the judge agreed. The judge recorded that she had not been asked to resolve any of the disputed facts and took the view that it was unnecessary for her to do so.
The judge observed that the authorities did not provide much guidance as to what to do in circumstances such as these. She said that her attention had been invited to Re A (Joint Residence: Parental Responsibility) [2008] EWCA Civ 867 [2008] 2 FLR 1593 as referred to in the Family Court Practice but that it did not seem to be applicable here.
She began her judgment by explaining that she thought it appropriate that the order made by the court should recognise that only one of the parties was the twins' mother and therefore she should have sole parental responsibility for them. In contrast, she remarked that the appellant is not a parent of the children and that her status should not be elevated in that way (§4). She considered that the contact arrangement, coupled with the agreement to provide information about education and medical issues and for a limited delegation of parental responsibility was sufficient to recognise the importance of the appellant's involvement in the children's lives (§9).
The judge thought it of significance that in relation...
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