Re G (Residence: Same-sex Partner)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE TUCKEY,LADY JUSTICE ARDEN |
| Judgment Date | 06 April 2005 |
| Neutral Citation | [2005] EWCA Civ 462 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 April 2005 |
| Docket Number | B4/2004/2573 |
[2005] EWCA Civ 462
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TELFORD COUNTY COURT
(HER HONOUR JUDGE HUGHES)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Tuckey
Lady Justice Arden
B4/2004/2573
MR STEPHEN COBB QC AND MISS LORNA MELLOR (instructed by Bindman & Partners, London WC1X 8QB) appeared on behalf of the Appellant
MRS HEATHER SWINDELLS QC AND MISS CAROLYN JONES (instructed by Dodds & Partners Solicitors, Leicester LE1 5RA) appeared on behalf of the Respondent
(Approved by the Court)
Wednesday, 6 April 2004
The appellant, W, formed a relationship with CG in August 1995 and they cohabited until May 2003. During the course of their relationship they enlarged the family by first, the birth of M on 2 February 1999, and then M, on 26 June 2001. Both are the biological children of the respondent conceived by anonymous donor insemination. CW, the appellant, has a son, J, who is aged 16 and not the subject of these proceedings.
On a date in September the appellant obtained leave to make an application for shared residence in respect of M. No application was necessary in relation to the older child because of the terms of section 10(5)(b) of the Children Act 1989, which provides:
"The following persons are entitled to apply for a residence or contact order with respect to a child —
…
(b) any person with whom the child has lived for a period of at least three years;"
A CAFCASS officer, Mrs Barrow, was appointed to the case and she prepared a written report, dated 8 June 2004, which was available to the judge and to the parties on the first date of the contested hearing in the Telford County Court, 18 June 2004. Most unfortunately only a day had been allowed. Predictably, I would think, the case did not conclude in a day, and the court was unable to accommodate the adjourned hearing until 16 and 17 November.
On 22 November the judge handed down her reserved written judgment. She refused the appellant's application for a joint residence order, but tempered the grant of the sole residence order to the respondent by making a series of section 8 specific issue orders which were designed to ensure that the appellant retained a significant role in the lives of the children.
On the second day of the hearing, namely 16 November, the respondent revealed her intention to move to permanent residence in Cornwall with her new partner. She further revealed that she had taken significant, but as yet tentative, steps to achieve that end over the course of the five-month adjournment.
A significant feature of the fact that the parties to this appeal had been in a same sex relationship was that the appellant could only achieve parental responsibility in relation to these two children if she succeeded in her application for a joint residence order. That is common ground at this hearing. It is also agreed that it is the consequence of the terms of section 4 of the Children Act 1989 which, under the head "Acquisition of Parental Responsibility by Father", provides:
"(4)(1) Where a child's father and mother were not married to each other at the time of his birth —
(a) the court may, on the application of the father, order that he shall have parental responsibility for the child;"
There have been some enactments not yet brought into force which will have the effect of enlarging the present limited terms of section 4(1). The Adoption and Children Act 2002, by section 12, inserts into the section 4 that I have already cited, a new section 4A which provides for the acquisition of parental responsibility by a stepfather. The further relaxation is achieved by section 75 of the Civil Partnership Act 2004 which, by section 75(2), inserts into section 4A(1) the words: "or a civil partner of" immediately after the words "is married to". However, the 2002 Act has not yet been given a commencement date and recent indications are that the planned commencement in September 2005 has been further postponed until the end of the year. A commencement date has not yet been given to the 2004 Act. I refer to these two statutes, therefore, only as an indication of a perceivable statutory trend towards the relaxation of the boundary originally set by section 4.
Since the appellant is not in a position to fit within the provisions of section 4 her only route to the acquisition of parental responsibility is via section 12(2) of the statute, 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."
The report of the CAFCASS officer, to which I have already referred, provided the following assessments for the judge:
"35. Miss G is firmly entrenched in her view that as the biological mother, she considers that her wishes and feelings are being overlooked by the Court, allowing substantial contact between M, M and Ms W. Somewhat ironically, she promotes her new partner's active involvement in their day to day care and I would suggest that in the future, M and M could become increasingly confused about their own identity and how significant adults fit into their lives. Ms G's domestic arrangements and confirmation that M and M are happily settled at school and nursery, suggests that a substantial change of arrangements would not be in their interest at present. However I would suggest that the importance and value of Ms W's role in their lives needs to be acknowledged. The current law, whilst recognising same sex relationships, stops short of granting parental responsibility unless a joint residence order is made. I would suggest that such a move would help to ensure that M and M grow up with a better chance of understanding the complexity of their own identity and should not be seen as detracting from Ms G's role, as their main carer."
There followed from that assessment the recommendation:
"I would suggest to the Court that there should be an Order for Ms W and Ms G to share joint residence of M and M and that alternate weekend contact from Friday to Monday … should continue."
There were then further recommendations in regard to the sharing of holidays.
The CAFCASS officer, Mrs Barrow, was recalled to the adjourned hearing in order to deal with the revelation that Miss G was planning to move to Cornwall. She accordingly gave quite extensive oral evidence which has not been transcribed but which is quite fully summarised in the judgment of Her Honour Judge Hughes, who had had judicial control of this case, if not from the outset, certainly from January 2004. In her judgment, she recorded the evidence of Miss W to the effect that she wished to have parental responsibility so that she could have proper legal involvement with the girls' lives. She had set out in her written evidence (on a single sheet at page C360 in the second bundle) what practically she sought to achieve by way of involvement in the girls' lives from the foundation of a parental responsibility order. She said that involvement in those areas would give the children a clear understanding; that she was in their lives to love, support and help them and was involved in important areas of their lives. The judge recorded the contrasting evidence of Miss G to the effect that Miss W should be viewed as an extended family member, not in a parental position. She did not wish Miss W to be a parent and did not accept that she could care for the children properly.
No doubt purely in response to the revelation of the plan to move to Cornwall, Miss W had advanced at the adjourned hearing an alternative case, that preferable to that would be for the children to move to her as a primary carer. That was certainly not the case that she had advanced at the outset. The oral evidence of the CAFCASS officer has, as recorded by the judge, been analysed by Mr Stephen Cobb QC to state seven specific foundations for the assessment and recommendation which I have already cited. The first was to this effect: she stated that excluding Miss W would not be helpful to the two girls when they were trying to understand their history and their early lives; secondly, that a shared residence order would help the girls to have a clear picture of where they fit in as they grow older; thirdly, that a joint residence order would work to specify in detail what arrangements there should be; fourthly, that it would help the children to know both parties were involved with their education; fifthly, that a joint residence order would require Miss G to share information with Miss W; sixthly, that a joint residence order would help the children to understand where Miss W fits in and to understand this better in years to come if an order gave her a legal importance in their lives; seventhly, that a joint residence order would encourage the parties to recognise the reality of the children's early lives.
The judge records Miss Barrow's acknowledgment of the potential for disputes over issues such as education, but also her optimism that the animosity between the...
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