T v B
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MOYLAN,The Hon. Mr Justice Moylan |
| Judgment Date | 16 June 2010 |
| Neutral Citation | [2010] EWHC 1444 (Fam) |
| Docket Number | Case No: LS07P05714 |
| Court | Family Division |
| Date | 16 June 2010 |
[2010] EWHC 1444 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Moylan
Case No: LS07P05714
Mr Goldrein QC and Mr Switalski (instructed by Taylor & Emmet LLP) for the Applicant
Mr Hyde QC and Miss Allman (instructed by Stewarts Law LLP) for the Respondent
Hearing dates: 18 th March 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 16 June 2010. It consists of 19 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
The issue which I have to determine is whether the Respondent is a parent under Schedule 1 of the Children Act 1989 so that the court has jurisdiction to make an order against her for financial relief. The Applicant has made an application for financial relief for the benefit of a child and this preliminary issue has been listed for determination prior to the court considering the merits of this application.
The Applicant has been represented at this hearing by Mr Goldrein QC and Mr Switalski with an earlier skeleton argument having been prepared by Mr Hayden QC. The Respondent is represented by Mr Hyde QC and Ms Allman.
The Respondent contends that she is not a parent for the purposes of Schedule 1 because it is confined to those who have the status of parent or are within the extended definition contained within paragraph 16. The Applicant contends that Schedule 1 is not confined to those who have the status of parent but permits the application of a fact sensitive, welfare informed, approach to the determination of who is a parent within the scope of Schedule 1. On the application of such an approach, the Applicant submits that the Respondent is a parent.
History
I take the history from the Respondent's written submissions.
The Applicant and the Respondent, who are both female, began a relationship in 1994. They lived together from 1994 until 2007. They have not entered into a civil partnership. The Applicant became pregnant by artificial insemination from an unknown donor through an authorised clinic. This followed a joint application by the Applicant and the Respondent for the Applicant to receive treatment by way of artificial insemination. A child was born to the Applicant in 2000 as a result of this treatment.
Following the end of the relationship and their separation, the Respondent issued an application for residence and contact. On 14 January 2009 the court made a shared residence order. In the course of his judgment District Judge Saffman said:
"… The decision for (the Applicant) to become pregnant was a decision which both acknowledge was ultimately reached jointly by the parties … Both took on the role of … parents after (the child's birth) …"
The Children Act
The financial application is made under section 15 and Schedule 1 of the Children Act 1989. As section 15 states, Schedule 1 "consists primarily of the re-enactment, with consequential amendments and minor modifications" of a number of previous statutory provisions. It was not, specifically, intended itself to effect any significant legislative changes.
Schedule 1 paragraph 1 provides:
1. (1) On an application made by a parent, guardian or special guardian of a child, or by any person in whose favour a residence order is in force with respect to a child, the court may—
(a) in the case of an application to the High Court or a county court, make one or more of the orders mentioned in sub-paragraph (2);
(b) in the case of an application to a magistrates' court, make one or both of the orders mentioned in paragraphs (a) and (c) of that sub-paragraph.
(2) The orders referred to in sub-paragraph (1) are—
(a) an order requiring either or both parents of a child—
(i) to make to the applicant for the benefit of the child; or
(ii) to make to the child himself,
such periodical payments, for such term, as may be specified in the order;
(b) an order requiring either or both parents of a child—
(i) to secure to the applicant for the benefit of the child; or
(ii) to secure to the child himself,
such periodical payments, for such term, as may be so specified;
(c) an order requiring either or both parents of a child—
(i) to pay to the applicant for the benefit of the child; or
(ii) to pay to the child himself,
such lump sum as may be so specified;
(d) an order requiring a settlement to be made for the benefit of the child, and to the satisfaction of the court, of property—
(i) to which either parent is entitled (either in possession or in reversion); and
(ii) which is specified in the order;
(e) an order requiring either or both parents of a child—
(i) to transfer to the applicant, for the benefit of the child; or
(ii) to transfer to the child himself,
such property to which the parent is, or the parents are, entitled (either in possession or in reversion) as may be specified in the order.
It can be seen that substantive orders can only be made against a "parent". Paragraph 16 defines parent for the purposes of the Schedule (save for paragraphs 2 and 15):
"'parent' includes –
(a) any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and
(b) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family …".
Paragraph 2 gives the court power, in certain circumstances, to make an order for financial relief against a parent on an application by a child who has reached the age of 18. Accordingly, the court cannot make an order under paragraph 2 against a party to a marriage or a civil partner in a civil partnership in relation to whom the child has been a child of the family but only against a parent.
Paragraph 4 of Schedule 1 contains the matters to which the court is required to have regard when exercising the jurisdiction to make orders for financial relief. Paragraph 4(1) sets out the matters to which the court must have regard when deciding whether to exercise its powers under paragraph 1 or 2. By paragraph 4(2), the court in addition, when deciding whether to exercise its powers under paragraph 1 against a person who is not the mother or father of the child, is required to have regard to a number of further matters including whether that person has assumed financial responsibility for the child. This is focused on the exercise by the court of its powers against those who come within the extended definition of parent as provided by paragraph 16.
There is no definition of the word "parent" in the Children Act other than that contained in Schedule 1. It is though, of course, a word that appears in other provisions including, for example, section 1(3)(f) of the welfare checklist which requires the court to have regard to "how capable each of his parents … is of meeting his needs" and section 10(4)(a) which gives "any parent" the right to apply for any section 8 order.
Under section 10(2) the court has power to make a section 8 order on the application of a person (a) who is entitled to apply or (b) who has obtained leave to apply. Those who are entitled to apply for any section 8 order are set out in section 10(4) and include any "parent", any person who has parental responsibility by virtue of section 4A and any person in whose favour a residence order is in force in respect to the child. Section 4A contains provisions whereby a step-parent can acquire parental responsibility. Section 10(5) additionally defines those who are entitled to apply for a residence or contact order and they include any party to a marriage in relation to whom the child is a child of the family, any civil partner in a civil partnership in relation to whom the child is a child of a family and any person with whom the child has lived for a period of at least three years.
Section 4ZA of the Children Act (inserted by the Human Fertilisation and Embryology Act 2008) contains provisions whereby a "second female parent" can acquire parental responsibility. These provisions apply when a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008, which I refer to later in this judgment.
Other Legislation
In 1979 the Law Commission published a Working Paper (No. 74) entitled Family Law, Illegitimacy. This contained a comprehensive review of this subject and addressed, among other issues, the issue of the paternity of children conceived by artificial insemination by a third party donor. The proposal in the Working Paper in respect of such children was limited to proposing that "where a married woman has received AID treatment with her husband's consent, the husband rather than the donor should, for all legal purposes, be regarded as the father of a child conceived as a result". The 1982 Report (Illegitimacy, Law Com No 118) summarised the legal position as being that: "the donor, not the mother's husband, is the legal father of an AID child" (para. 12.1). The Report recommended that the legal position should change as proposed in the Working Paper.
The Warnock Committee of Inquiry into Human Fertilisation and Embryology reported in July 1984. The report covered a wide range of...
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