“19. There are a very large number of cases where the courts have addressed the question of in what circumstances an applicant should be granted parental responsibility for a child when they do not have that status automatically. Many of these are referred to in the very helpful judgment of Black LJ (as she then was) in Re G (Children)[2014] EWCA Civ 336 . 20. The starting point is as set out in Re H (Minors) (Local Authority: Parental Rights (No 3)[1991] Fam 151 where the Court of Appeal highlighted three particular features from amongst the factors the court should take into account when considering an application by a father for parental responsibility. These were the degree of commitment the father had shown to the child; the degree of attachment between them; and the motivation behind the father's application. In my view, these are the three touchstone issues that the court has to address when deciding parental responsibility, and there is no difference in this regard between a father and a woman who argues she stands in the position of a second female parent. 21. A number of judges have emphasised the status that parental responsibility confers, see as but one example, Ryder LJ in Re M (Parental Responsibility Order)[2013] EWCA Civ 969 : "27. I return now to the question of status. The status conferred by parental responsibility is an important legal recognition of the delicate balance between rights, duties, powers, responsibilities and authority that are the components of family and private life. It is integral to the concept of parental responsibility. It is not, however, a separate 'stand alone' factor, let alone a presumptive factor to be weighed alongside other Re S factors in the welfare consideration of whether a parental responsibility order should be made. The status of parental responsibility underlies the authorities and the guidance that was applied by the judge in this case. It would no doubt have been helpful to articulate the importance of parental responsibility as a status question i.e. the reason why the Re S factors have been identified as being relevant to the welfare question, but that would not have altered the evidence the judge accepted nor the evaluative judgment on the Re S factors to which he came. For my part, I have come to the clear conclusion that the judge did not err in law nor was there any error in his approach or his evaluation." 22. In A v B and C (Lesbian Co-Parents: Role of Father)[2012] EWCA Civ 285 Thorpe LJ made clear that there was no general rule about whether parental responsibility should be ordered and said: "In the end the only principle is the paramountcy of child welfare" at [23]. He went on to say that he was cautious about the proposition that great weight should be given to "the plans that adults make for future relationships between the child and the relevant adults. Human emotions are powerful and inconstant. What the adults look forward to before undertaking the hazards of conception, birth and the first experience of parenting may prove to be illusion or fantasy". 23. In my view, it follows that whatever agreement or understanding the parties may have had at the time of conception and birth will not be determinative in deciding whether parental responsibility should be granted. That is not to say that such an agreement is wholly irrelevant, as it may provide evidence as to the commitment of the applicant to the child and be informative as to the nature of the relationship that they have with the child. However, evidence as to the applicant's current commitment and attachment to the child is likely to be of greater interest to the court than the parties' earlier intentions. 24. It is clear from the caselaw that a potential reason for not granting parental responsibility is how the applicant may use the parental responsibility if given it. If the court considers that the applicant may misuse the parental responsibility, then that would be a ground to refuse it. In Re M (Parental Responsibility Order) , the Court of Appeal upheld a refusal of parental responsibility to a father who the judge believed would use the order to undermine the mother and the child. This issue of possible misuse of the order goes in my view to the "motivation" factor referred to above. 25. By section 12(2) an applicant will automatically gain parental responsibility if there is a shared care/lives with order in favour of the applicant. This means that where the court is considering whether to make such an order, with the consequence of parental responsibility, it will need to have in mind the issues of commitment, attachment and motivation before making the order. In the vast majority of cases I would assume that the issues about the nature of the order and parental responsibility would effectively be the same. 26. In Re G (Children) (Residence: Same Sex Partner)[2006] UKHL 43 , Baroness Hale considered the weight to be attached to the fact that one party is both the natural and legal parent of the child, as is the case here for MC. She also considered the number of different ways that a person may be a parent to a child including being a social and psychological parent. I note at this point that FC was clear that she entirely respected MC's position as D's biological and legal parent and said that she had no intention of competing with or undermining this position.”
“26. These principles must be read in light ofFPR 2010 PD12J , entitled Child Arrangements and Contact Orders: Domestic Abuse and Harm , which provides as follows at paragraph [7]: "In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child's life will further the child's welfare, unless there is evidence to the contrary. The Court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm." 27. The foregoing principles set out inPD12J are expressed by reference to domestic abuse. However, it is plain that this approach will apply, in proceedings relating to a child arrangements order, to all allegations or admissions of harm to the child or parent relevant to the question of contact or evidence indicating such harm or risk of harm. Within this context, I note that paragraphs 35 to 37 ofPD12J enjoin the court, inter alia , to take the following factors into account when considering child arrangements in cases where the court is satisfied that such harm has occurred: i) The court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child. ii) The court should apply the individual matters in the welfare checklist set out ins.1(3) of the Children Act 1989 with reference to the harm that has occurred and any expert risk assessment obtained. iii) In particular, the court should consider any harm which the child, and the parent with whom the child is living, is at risk of suffering if a child arrangements order is made. iv) The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact. v) The court should consider, inter alia , whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of abuse against the other parent and the capacity of the parents to appreciate the effect of past abuse and the potential for future abuse.”
“24. In my judgment it is essential at this point to put aside the fears, aspirations and feelings of the adults and to try to look at the case through the eyes of a growing boy, as BA is. He will grow up in the family of CV and S and to him that will be unremarkable. However, he will go to school and it will not surely be long before he has questions about a father. The present proposal (reasonable in itself) is that he will be told of the kind man who enabled mummy to have him. He will hopefully grow up knowing his extended family on both sides. He will accordingly know TJ as one of his uncles. The rest of the family (on both sides) knows of course that TJ is more than that as BA will inevitably discover. To avoid this information coming out in an unplanned way, Dr.S wisely advises that BA learns early of the facts of life and of the means by which he came to be. Will it help him, I ask myself, to know also that this uncle is more to him than that? I am sure that it will. The experience of adoption, which surely we must not neglect in other less conventional forms of parenting, is that children often develop a real interest in their natural parents. This is hardly surprising since that person, however small their involvement in the life of the child, has contributed 50% of his genetic make-up. The other powerful lesson from adoption is the need for truth and the avoidance of deceit from the earliest days. Young children rarely have trouble with the truth, however strange it may seem, although the adults around them may do so. However, the discovery in adolescence that they have been duped or misled (as they may choose to see it) may have serious ramifications for family relationships. 25. It is for these reasons that I think that, if it is possible to do, it is strongly in BA's interests to maintain some kind of relationship with TJ. As a bald statement that is not really controversial. Moreover both Dr. S and, more cautiously, the guardian saw such a role particularly where the court has concluded that TJ is genuine in motivation even if clumsily heavy-handed in style.”
“Guidelines (1) Section 91(14) of the Act of 1989 should be read in conjunction with section 1(1), which makes the welfare of the child the paramount consideration. (2) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances. (3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child. (4) The power is therefore to be used with great care and sparingly, the exception and not the rule. (5) It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications. (6) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications. (7) In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain. (8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point. (9) A restriction may be imposed with or without limitation of time. (10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order. (11) It would be undesirable in other than the most exceptional cases to make the order ex parte.”
“The court has power both to relax and to add to the “automatic restraints.”
“The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd[2004] 2 WLR 1232 . For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”