G (Children), Re [2005] EWCA Civ 462

Case No 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)
Venue Royal Courts of JusticeDate Wednesday, 6 April 2005
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE TUCKEY
LADY JUSTICE ARDEN
G (CHILDREN)
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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
J U D G M E N T

LORD JUSTICE THORPE:

The

[1]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.[2]On a date in September the appellant obtained leave to make an application for shared residence in respect of M.

(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;"
[3]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.[4]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.[5]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.[6]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;"
[7]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.[8]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."
[9]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."
[10]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.[11]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.[12]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.[13]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 parties would dissipate over time. It is of importance in my judgment to note the judge's record of Mrs Barrow's expressed fear that Miss W would be marginalised if she was not involved in the girls' lives by having parental responsibility and therefore being involved in various issues and decisions.[14]In her reserved judgment, the judge made an important finding in relation to the revelations from Miss G on the second day. The judge expressed her finding thus:
"I must inevitably conclude that the proposed move must in part be deliberately designed to frustrate the current contact arrangements."
Despite that finding, the judge then moved to express relatively briefly her ultimate conclusion. She said:
"Having read and heard all the evidence I regret to say that having considered this matter very carefully indeed and the children's welfare being my paramount consideration, I cannot accept Ms Barrow's recommendation for joint residence order which would give Ms W parental responsibility. In my view such a sharing of parental responsibility would result in endless disputes between the parties which may require the Court's intervention to resolve issues of education, accommodation, elective medical procedures and so forth which could not be in the long term interests of these children. A recent consultation document from CAFCASS encourages its officers to consider shared residence orders where parental cooperation and practical circumstances allow and it appear to be in the child's interests. This does not seem to me to be such a case."
[15]Neither junior counsel who appeared below, nor leading counsel who have come in to argue the appeal, are able to shed any light on the document there referred to and relied upon. It was apparently only mentioned in the judgment and not at any stage of the trial.

The judge went on, however, to find in the closing paragraph of her judgment that:

"... Miss W is a significant figure in their lives and that her important place both historically and in the future can be maintained and reinforced by good quality frequent contact. That in turn can be achieved by a defined contact order which will largely encompass Ms W's contact proposals."
She proscribed the move to Cornwall and made a detailed order containing a number of specific issue provisions as well as a detailed contact order. It is perfectly apparent that in designing the specific issue orders designed to safeguard, if not reinforce Miss W's position, the judge drew heavily upon the single sheet at page C360.[17]Mr Cobb, in the course of his elegant submissions, has described this resulting order as but a pale shadow of what Miss W would have achieved had she been granted a joint residence order. He has taken us through the order as sealed, comparing paragraph by paragraph the appellant's ambitions as defined at page C360, and he has shown that in a number of respects where Miss W sought consultation she was reduced only to notification. Other of her objectives were implicitly rejected by the judge since they found no place in her order.[18]Mr Cobb's skeleton argument is comprehensive in its criticism of the judgment. For present purposes I will only summarise its main heads. His first ground, expanded in his skeleton argument, is that the judge rejected the recommendation of the Cafcass officer without sufficiently reasoning and justifying her departure. His second ground is that the judge had not sufficiently identified the importance of the indirect application for parental responsibility and had not had regard to authority in that area, as well as to current trends both in statutory and judicial evolution of family law in the context of same sex relationships. In his third ground Mr Cobb submits that the judge failed to pay proper heed to the CAFCASS officer's warning that without parental responsibility Miss W would be marginalised. In his fourth ground Mr Cobb submits that the judge gave too much weight to the difficulties in current relationship between the parties as a factor that precluded a joint residence order. Fifthly, he submits that the judge did not specifically address the benefits to the children in the making of shared decisions as to their future - that is, essentially flagging up the importance that this court has attached consistently over recent years to the benefits of shared parental responsibility.[19]To some extent these submissions interrelate and overlap. They have been answered broadly by Mrs Heather Swindells QC who, with her characteristic advocacy, has properly emphasised that this was a case that the judge had had responsibility for from the outset. She had thereby acquired an unrivalled opportunity to assess the parties and the state of the relationship between them. To that extent she was fully entitled to depart from the CAFCASS officer's optimistic assessment of future diminution in conflict and, on her assessment, which Mrs Swindells suggests is more realistic than the CAFCASS officer's, the giving of clear primary responsibility to the birth mother, was well within with the area of her discretion and properly safeguarded by the detailed section 8 orders.[20]That brief summary of the argument demonstrates how ably the case has been advocated before us and, before stating my ultimate conclusions, I would like briefly to record the well known lines of authority that bear on the outcome.[21]Mr Cobb rightly stresses the judgment of Wall J (as he then was) in the case of A v A (Shared Residence) [2004] 1 FLR 1195. Mr Cobb particularly emphasises a citation, in the course of paragraph 23 of the judgment, from the report of the children's guardian, who had said of those parents:
"With respect to the parents, Mr A and Mrs A, a virtual state of war had been going on for over 5 years. It appeared that the first response of both parents in the event of even the most minor disagreement was to rush to solicitors or to make applications to the court."
He then refers us to paragraph 24(8), where Wall J drew attention to the fact that the case was one that dealt with both intractable contact and residence disputes cutting across all barriers. Against those findings Mr Cobb submits that paragraphs 124 to 126 of the judge's conclusions are particularly relevant to the disposal of this appeal. Wall J said:
"If these parents were capable of working in harmony, and there were no difficulties about the exercise of shared parental responsibility, I would have followed Mrs P's advice and made no order as to residence. Section 1(5) of the Children Act 1989 requires the court to make no order unless making an order is better for the children concerned than making no order at all. Here, the parents are not, alas, capable of working in harmony. There must, accordingly, be an order. That order, in my judgment, requires the court not only to reflect the reality that the children are dividing their lives equally between their parents, but also to reflect the fact that the parents are equal in the eyes of the law, and have equal duties and responsibilities towards their children."
He then in paragraph 125 noted the risk that making a sole residence order in favour of the father would very likely be misinterpreted. He continued. "Mr A has already given a strong indication that this is the case. Whilst, as I have already indicated, I regard him as an honourable man, and one who will implement a 50/50 living arrangement, I have no doubt at all that he wishes to be in control, and believes that the arrangements between 30 December 2002 and now have only worked because he has had a sole residence order. That, he believes, is the reason why Mrs A had not made any trouble. 126. I disagree with that analysis. This case has been about control throughout. Mrs A sought to control the children, with seriously adverse consequences for the family. She failed. Control is not what this family needs. What it needs is co-operation. By making a shared residence order the court is making that point. These parents have joint and equal parental responsibility. The residence of the children is shared between them. These facts need to be recognised by an order for shared residence." In so far as the passages that I have cited reveal any point of principle or any guidance of general application, I would wish to endorse the words of Wall J whole-heartedly. Despite the distinction drawn by Mrs Swindells that Mr and Mrs A had been married, and accordingly had automatic parental responsibility, there is, in my judgment, much force in the passages cited by Mr Cobb applied to the present appeal.[22]I turn now briefly to authority in relation to applications for parental responsibility. The starting point is the well known three-fold test developed by this court in Re H [1991] FAM 151. Beyond that, in the case of Re C and V [1998] 1 FLR 392 Ward LJ in his judgment emphasised the benefits to be achieved for a child by the grant of parental responsibility to both parents. I quote only a brief passage from his judgment at page 397:
"... wherever possible, the law should confer on a concerned father that stamp of approval because he has shown himself willing and anxious to pick up the responsibility of fatherhood and not to deny or avoid it."
Another line of authority to which I will shortly come demonstrates that what Ward LJ had to say of fathers is of application to same sex parents.[23]As to the obligations on the judge to give proper effect to the recommendations of the CAFCASS officer or alternatively to explain fully and cogently her reasons for rejecting them, the starting point is the decision of this court, and specifically the judgment of Purchas LJ, in W v W [1988] 2 FLR at 505. Mr Cobb demonstrates how over the passage of years the obligation on the judge has, if anything, been magnified; and he demonstrates that by citing the more recent case of D v D [2001] 1 FLR 495.[24]Finally, I come to the authorities that demonstrate the evolution of the judicial acceptance of the diversity of the family in modern society. Mr Cobb cites the judgment of Singer J in Re W [1997] 3 FLR 650, the decision of the House of Lords in Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 and, more recently, the decision of the House in Ghaidan v Godin-Mendoza [2004] 3 WLR 113. He has selected a passage from the speech of Baroness Hale in paragraphs 141 and 143 which neatly demonstrates the present state of the judicial recognition and acceptance of family diversity. Baroness Hale said:
"... the presence of children is a relevant factor in deciding whether a relationship is marriage-like but if the couple are bringing up children together, it is unlikely to matter whether or not they are the biological children of both parties. Both married and unmarried couples, both homosexual and heterosexual, may bring up children together. One or both may have children from another relationship: this is not at all uncommon in lesbian relationships and the court may grant them a shared residence order so that they may share parental responsibility. The lesbian couple may have children by donor insemination who are brought up as the children of them both: it is not uncommon for each of them to bear a child in this way. ... 143. It follows that a homosexual couple whose relationship is marriage-like in the same ways that an unmarried heterosexual couple's relationship is marriage-like are indeed in an analogous situation. Any difference in treatment is based upon their sexual orientation."
[25]Although Mr Cobb has not asserted discrimination against his client he has made the general observation that had the case concerned the two children of a heterosexual couple who had cohabited between 1995 and 2003 and the father, being the absent parent, had sought the parental responsibility order on the strength of the same degree of past and proposed future commitment as has been demonstrated by Miss W, the outcome would have been evident.[26]Thus I have reached the clear conclusion that Mr Cobb is entitled to succeed on more than one of the grounds that he has advocated. I am not sufficiently reassured by Mrs Swindells' argument that the judge's explanation for the rejection of Mrs Barrow's recommendation and warning was sufficiently well grounded and sufficiently explained. After all, whether or not endless disputes are predictable between the two adults depends not on the nature of the court order, so much as on the nature of the relationship between them. Accordingly, it does not seem to me to be sufficient for the judge to say that a parental responsibility order, as opposed to the order that she preferred, would be provocative of disputes that otherwise would have been avoided.[27]But perhaps more crucial for me was the judge's finding that between the first and second days of the hearing the mother had been developing plans to marginalise Miss W. In that context it is relevant to refer to the publication in July 2004 of the Government's Green Paper in relation to contact difficulties. That Green Paper has led to the relatively recent publication of the draft Children (Contact) and Adoption Bill. The Government has by its consultation paper and its subsequent proposed bill highlighted the very great social problems that have been developing over the last few years as a consequence of an increased tendency for primary carers to ignore or to observe only in the letter court orders designed to guarantee contact to the absent parent. The whole purpose of the Bill is to introduce new powers and management techniques for judges to combat such adult manipulation. The CAFCASS officer had expressed a clear fear that unless a parental responsibility order was made there was a real danger that Miss W would be marginalised in the children's future. I am in no doubt at all that, on the judge's finding, the logical consequence was the conclusion that the children required firm measures to safeguard them from diminution in or loss of a vital side of family life - not only their relationship with Miss W, but also with her son. The parental responsibility order was correctly identified by the CAFCASS officer as the appropriate safeguard. The judge's finding required a clear and strong message to the mother that she could not achieve the elimination of Miss W, or even the reduction of Miss W from the other parent into some undefined family connection. It may be that the mother's own needs and emotions drove her in that direction, but that road had to be sealed off for, if not sealed off, it would be taken at a real cost to the children. I do not think that that factor was sufficiently identified by the judge.[28]For all those reasons I would allow the appeal and grant the joint residence order that the judge refused.

LORD JUSTICE TUCKEY: I agree.

LADY JUSTICE ARDEN: I also agree. (Application for permission to appeal allowed; appeal allowed; further order as agreed between counsel; Appellant's costs to be the subject of a detailed assessment; reporting restrictions).

Cited in 11 later judgments

and 2 more of the most senior