Sarah Osborne v Helen Arnold
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 25 July 2022 |
| Neutral Citation | [2022] EWHC 1982 (Admin) |
| Docket Number | Case No: FD22P00294 |
| Court | Queen's Bench Division (Administrative Court) |
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[2022] EWHC 1982 (Admin)
THE HONOURABLE Mr Justice MacDonald
Case No: FD22P00294
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
AND QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Marisa Allman (instructed by Cambridgeshire Family Law Practice LLP) for the Applicant
The Respondent appeared in person
Ms Francesca O'Neill (instructed by Cambridgeshire County Council) for the First Intervener
Mr Andrew Powell (instructed by the Government Legal Department) for the Second Intervener
Hearing dates: 15 July 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
In this matter I am concerned with applications in the Family Division of the High Court in respect of the child of Sarah Osborne and Helen Arnold, C, born in August 2014 and now aged nearly 8 years of age. Those applications are for a declaration of parentage in favour of Ms Osborne, pursuant to s.55A for the Family Law Act 1986 and for an order under the inherent jurisdiction revoking an adoption order made by the Family Court sitting at Ipswich on 3 November 2015. Ms Osborne, represented by Ms Marisa Allman of counsel, brings those applications and the respondent to those applications is Helen Arnold. Ms Arnold appears in person. Both Cambridgeshire County Council and the General Registrar appear as interveners in those proceedings.
In addition, I am concerned with a claim for judicial review in the Administrative Court brought by Ms Osborne and Ms Arnold against Cambridgeshire County Council, represented by Ms Francesca O'Neill of counsel, with respect to the decision of the Registrar not to register Ms Osborne as C's parent. The Registrar General is an interested party in that that claim, represented by Mr Andrew Powell of counsel.
I have determined to hear these matters together. The applications for a Declaration of Parentage and revocation of adoption are listed for a final hearing. The claim for judicial review is listed for consideration of permission and for a final hearing of the substantive claim if permission is granted. The applications for a Declaration of Parentage and the revocation of the adoption order are made by consent between the Applicant and Respondent. Cambridgeshire County Council and the Registrar General offer no objection or opposition to those applications. The local authority does not oppose the claim for judicial review being made out of time nor the substantive relief sought. The Registrar General, as an interested party, likewise does not offer any objection.
On 15 July 2022 I gave my decision in this matter, making the declaration of parentage pursuant to s.55A of the Family Law Act 1986, revoking the adoption order and granting permission for, and allowing, the claim for judicial review. I ordered Cambridgeshire County Council to pay the costs. I now set out my reasons for doing so.
BACKGROUND
In circumstance where at the outset of these proceedings there was a prospect of civil litigation between the applicant and the local authority and/or Registrar General, this court faced the prospect of a lengthy delay before it could determine the applications before the court. In particular, the insurers of the local authority sought an extended period to review the case before being in a position to provide a definitive response to the applications before the court, in circumstances where the outcome of those applications, and any findings made in the determination of those applications might impact on other litigation. However, in circumstances where this court was not prepared to tolerate the delay inherent in that approach, the court directed the parties to agree a schedule of facts that could form the basis of an expeditious decision by this court. To their credit, the parties were able to compile such a schedule.
Within this context, the account of the background to this matter set out in this judgment is taken from the facts agreed between the parties to these proceedings. However, I pause to note that certain assertions made by the local authority, particularly in the statement of Louise Clover, suggest the local authority does not accept the entirety of the account of Ms Osborne and Ms Arnold as set out before the court. The following paragraphs from Ms Osborne's statement are relevant in this regard:
“[6]…We had made an appointment to register C's birth at the Cambridgeshire Register Office on 14th August 2014 (two weeks after his birth). During this appointment I was told by the registrar, in no uncertain terms, that I could not have my name entered onto my son's birth certificate because I was not the father and there could only be one mother: there was no place for me. I queried her response, but she was adamant that unless I was the father of our son, and I clearly wasn't, then my name was not permitted on the document. In hindsight, of course, I wish I had pushed harder but when in such an official setting and going through such an official process (which neither of us had experienced before) I/we trusted the professional sat in front of us and their competence.
[7] The flippant, disrespectful, and indignant attitude, tone, and comments of the registrar made me feel like I was stupid to ask, or expect, to be named on the birth certificate and that I was not deserving of such official recognition by having my name included (as if I was a random stranger Helen had just found outside on the street and taken in for moral support). There was no acknowledgement whatsoever of who I was, of our relationship, or my role; of us being a family. We were informed that I would have to adopt C by means of completing a step-parent adoption but that we would have to wait until he was at least six months old before doing so.
[8] We were both somewhat confused and rather taken aback by this information given that we had assumed, and were sure, that we had signed all the necessary consent forms for me to have full parental responsibility for any child born as a result of the IVF procedure. I remember when I signed these forms how proud, privileged, and happy I felt to know that we could do this together and as equals, as mothers. Even before we could receive IVF treatment, we faced a series of questions to satisfy the clinic that we would make suitable parents and that we realised and understood the commitment we were undertaking; we had done everything required to evidence we were creating a family together, that I was committed to both Helen and my child, and to making sure our child would always be safe, supported, loved, and cared for their entire life. We had spent so much time and effort discussing, planning, preparing for, and going through treatment; we had our precious son, we had made it a reality, and within those few minutes I felt all my pride and identity as a mother being stripped away from me; those few hostile, dismissive and inconsiderate comments, because of my gender, were devastating. I was, and am, C's mother.”
The witness statement of Ms Clover, who was not present at the registration on 14 August 2014, challenges the account of Ms Osborne and Ms Arnold that they were unequivocally informed by the Registrar that Ms Osborne would have to apply to adopt C. However, the basis for that attempted rebuttal is simply an assertion that, in circumstances where it is asserted that the Registrar was not qualified to give legal advice, Ms Clover does “not recognise the wording to have been anything a member of registration staff would have said”.
It is not necessary to determine this point of difference for the purposes of granting the relief sought in the Family Division and in the Administrative Court. However, I endorse Ms Allman's submission that the evidence of the local authority fails entirely to recognise the gravity of the error made by its Registrar and the impact on this family of that error. I likewise endorse Ms Allman's submission that the applications before the court are only having to be made because of the conduct of the Cambridgeshire County Council Registrar who registered C's birth. Within this context, the fact that the local authority has to fall back on the feeble assertion, made by a witness who was not present at the material time, that an alleged statement by a member of its staff is not ‘recognised’ perhaps speaks for itself.
Turning to the agreed facts that ground the applications for relief in this matter in both the Family Division and in the Administrative Court, Ms Osborne and Ms Arnold have lived together since December 2010. As I have noted, the subject child, C, was born on 1 August 2014. Helen Arnold is C's legal, biological and gestational mother. Sarah Osborne is, as a matter of fact and law, C's second female parent pursuant to Section 43 and 44 of the Human Fertilisation and Embryology Act 2008.
C was born following IVF treatment undertaken in a United Kingdom licenced clinic. Within this context, an anonymous donor fulfilled the requirements of Schedule 3 to the Human Fertilisation and Embryology Act 1990. In the circumstances, C has no legal father. Ms Arnold and Ms Osborne completed Forms WP and PP correctly and at the appropriate time.
Following C's birth, Ms Osborne and Ms Arnold attended at Cambridgeshire Register Office on 14 August 2014 for the purposes of registering C's birth (whilst the Registrar General has overall responsibility for the Registration Acts for England and Wales, local authorities are responsible for delivering the registration service for a given area). It is agreed as a fact that Ms...
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