ML & Anor v RW & Anor [2011] EWHC 2455 (Fam)

[2011] EWHC 2455 (Fam)

Case No FD08P01237

IN THE HIGH COURT OF JUSTICE FAMILY DIVISION

Venue Royal Courts of Justice

Date Friday, 29 th July 2011

Before

MR. JUSTICE HEDLEY

(In Private)

Between

ML & AnorClaimant

RW & AnorDefendant

B E T W E E N:

(1) M L

(2) A R Applicants

- and -

(1) R W

(2) S W Respondents

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MR. P. PRESSDEE QC appeared on behalf of the Applicants.

MISS L. CADE-DAVIES appeared on behalf of the Respondents.

MISS M. JONES appeared on behalf of the Guardian.

J U D G M E N T

[1]This case concerns the relationship that two girls aged ten and six should have with the significant adults in their lives. This litigation has been ongoing for just over three years, and has acquired an unusual degree of intensity and hostility.

[2]The person charged with facilitating contact of late in this case reports on a meeting that she had on 16th March 2011 with the elder girl. She says this:

“I then went upstairs to see P and talk to her about the visit and how she felt about it. I was deeply saddened by what I heard from her, which confirmed for me the way in this almost ten year old girl is being made to carry the responsibility for the failure of the adults in this system to overcome the conflicts between them. P told me that she wished she could move away, far away from all this conflict, all this horrible stuff. She told me that she cries at school in the toilets and her friend looks after when she is upset, which is a lot. P said that she does not feel as if M is a father to her. She has two mothers. That is her family and she is happy with that. She liked M and A and likes seeing them too, but she did not think of them as her family because she has family. It is the mothers and her younger sister. She cannot just pretend that M is her father in order to make him happy. She said that in the past it was okay, they saw M and A and that was fine, and she might even like seeing them now if they stopped being so horrible to her and making her feel as if they were ruining her family all the time. She wished for the time past when the mothers quite liked M and A, and M and A did not do all those horrible court things that make everyone so miserable. She does not know why they cannot just sort it out and let her be a normal ten year old child. I felt, as she spoke me, the horrendous tangle of emotion and conflict that exists between these adults and saw the reality of the way in which their agreement to have P has resulted in such misery for her. The misery is not because of the way in which she was created, it is because these adults and their failure to manage their own conflicting feelings, reactions and personal baggage have handed over the responsibility for coping with the mess to P. I have no doubt that this responsibility will also be handed on to L if there is not a resolution soon.”

[3]Three troubling matters emerge from that little snapshot. The first is that this child has suffered significant emotional harm as a result of the conflicts which have raged around her for at least the last three years. The second is that I have in the course of this hearing detected no basis on which she might look for any resolution of those conflicts in the future. Thirdly, it must follow from that that the four adults in this case regard the price paid by these two children as an acceptable price for the pursuit of their own adult disputes.

[4]I do not at this stage seek to apportion blame between the four adults because it needs to be made clear that none other than the four can be responsible for what has happened, and none other than the four can repair it unless the damage becomes so great that the local authority is required to intervene in order to rescue these children from an impossible conflict. We are happily not yet at that stage.

[5]It is right to record in fairness that the parties in this case have not been assisted by the court process. I am the twelfth Judge involved in this case which is one, on the face of it, crying out for judicial continuity. This week was the first time in the three years of the litigation that the parties were afforded the opportunity of giving oral evidence. Even that was fortuitous because originally this had been set down for the purposes of tidying up what somebody once optimistically thought could be a conciliated contact. In fact, the order of 6th July 2011 of Ryder J in para.3 provides this:

“The hearing listed on 25 and 26 July shall go ahead and will be listed before Hedley J. The hearing is for the purpose of determining such facts as are necessary to assist the court in determining what paternal role the applicants have played and should play in the future. The intention is that the applicants and the first and second respondents will give oral evidence but no witnesses will be called for cross-examination.”

So last Monday constituted my first meeting with this case.

[6]Speaking now from long experience of dealing with conflicted family cases, this illustrates a number of fundamental problems. The first is that it is extremely difficult to identify where it was in the court process that this case went wrong. If one examines each order that has been made, and I have certainly looked at them, it is very difficult to criticise the making of each individual order. Indeed, I suspect a very large number of them were encouraged by the parties in the case.

[7]Secondly, there was an attempt to provide judicial continuity in the involvement of Sir Christopher Sumner, but of course that is almost impossible to deliver where one is dealing with a Judge who has essentially retired. This raises the old issue which no one has ever been able to resolve of the importance of spotting the potentially conflicted case at the earliest stage of the proceedings and treating it as just such a case, and not a case that can ultimately be managed towards a conciliated conclusion. Whatever may or may not have gone on in the court process it is certainly right to record that it has not assisted in terms of resolving the conflicted nature of this case.

[8]The adults in this case are intelligent professional people. The first applicant, who is aged 50, is the biological father of both girls and holds parental responsibility by virtue of the order made in these proceedings on 21st March 2011. The second applicant, who is aged 41, is the first applicant’s partner of some 20 years standing. The first respondent, who is aged 45, is the mother of both the girls with whom I am concerned, and the second respondent, who is a year younger, is the mother’s partner of some 25 years standing, and she holds parental responsibility by reason of an agreement made pursuant to a civil partnership, the agreement having been made on 10th April 2008.

[9]The girls were conceived by IVF with the agreement and co-operation of all parties. This case provides a vivid illustration of just how wrong these arrangements can go. There are perhaps two particular issues that this cases raises. The first is the need for precise agreement as to the roles that each is to play before any attempt is made to achieve a pregnancy; and secondly, this case, like others that I have been involved with, is bedevilled by a lack of a sufficient vocabulary to explain the true nature of the relationships. It is all too easy in these cases for biological fathers to see themselves in the same position as in separated parent cases in heterosexual arrangements, whereas this arrangement is, and was always intended to be, quite different.

[10]How did this all come about? It has its origins in the desire of both couples to be involved in parenting. In July 1999 the respondents placed in a journal known as the “Pink Paper” an advert in these terms: “Somewhere over the rainbow we know that there is a gay man or couple who would like to start with a lesbian couple who are fun-loving, have a good sense of humour, are very attractive and financially secure. If you want to make our dream come true please contact us. We are early 30s, London area …” and then a post box is provided.

[11]This advert prompted a reply from the applicants in a letter of 30th July 1999, the first two paragraphs of which are worth quoting in full:

“Somewhere over the rainbow are Adam and I. We have been together for many years and we have decided that we would love to be father and step-father. Like yourselves we are fairly secure. I am a fairly senior manager working at the head office of a major retail company based in Central London. My partner works for a restaurant chain as a manager. We currently live in Southampton, as it is only one and a quarter hours from London by train and we love our home. However, we are considering either moving back to London or establishing a second home there.”

Then it goes on with some information about themselves.

[12]That attracted a response from the respondents, two paragraphs of which are worth quoting:

“We have been together for almost 14 years, we met at university, and have been thinking of having a child for most of that time. It is now that we feel the time is right and we have thought long and hard about it. We would definitely want involvement from the father and step-father.”

Then further down:

“It would be the first respondent who would have the child and the second respondent would be the co-parent. We would require the donor to have an HIV test because of the obvious health risks and a sperm test. Both of us have had health checks and been given the all clear.”

[13]There is a further letter from the applicants of 27th August. Again, two paragraphs are worth quoting:

“The first applicant would be the father and the second applicant the step-father. The second applicant has been HIV checked and given all clear, and the first applicant is willing to have any health checks you require. Having only ever practised safer sex we are confident of an all clear also. We have always been in good health, though slightly lacking in fitness. Neither of us smokes and the first applicant never has.” 14. A little further down: “We very much look forward to meeting you and feel at this stage the most important things are to see if we all like each other and enjoy each other’s company. To further clarify our expectations about the level of involvement and to see if our view on some of the major issues are sufficiently close that we are unlikely to find ourselves with fundamentally different expectations.”

That was a prescient observation because it lies at the very heart of all the problems that have flowed in this case.

[14]Of course there were many subsequent discussions, but it was clear, and in particular it emerged in the first respondent’s evidence, that there was an emotional commitment to getting on with things, in particular to getting on with the pregnancy, and I have no doubt that that was shared by all, and I have no doubt that that was a significant contributory factor to the failure to obtain a proper and clear agreement on all sides as to what everyone’s role was to be. That is not to say that that was not attempted, because it most certainly was. For neither couple was this the first inquiry of its sort. The problem lay not in an attempt to agree things, it lay in a fundamental difference of understanding of the concepts of father and step-father. There is evidence in existence at the time all these matters were going on to show that the applicants and the respondents in fact had rather different expectations, which it is clear they failed to resolve as between themselves.

[15]All those attitudes have, of course, hardened over the years since, so that the position as before me this week was that the respondents sought to assert that the original understanding had been in relation to identity contact, whereas the applicants are clearly taking the view that they are in the position, or at least the first applicant is in the position of a traditional separated parent. Both these issues are later developments, but, as I say, it is clear that at the time there never was a proper meeting of minds.

[16]As I have thought about this case, I have tried hard to see whether there are any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases. The best that I have achieved, and I confess to having found it helpful in thinking about this case, is to contemplate the concept of principal and secondary parenting. The reason why this case is not equivalent to a separated parent is that there was a clear agreement that the respondents would do the principal parenting and that they would provide the two-parent care to these children. The second respondent clearly believes that her role in this regard has been brought into question, and it is certainly my view that her role in the concept of principal parenting, as one of the two principal parents, needs to be clearly affirmed and respected.

[17]By the same token, I am satisfied that the applicants were acknowledged as having a parenting role, albeit in a secondary capacity. That parenting role was to fulfil at least three purposes. The first was indeed to give a clear sense of identity to the child or children in due course. The second was to provide the male component of parenting which all must be taken to have acknowledged. Thirdly, there was a more general role of benign involvement which would have, but would certainly not be confined to, an avuncular aspect.

[18]It will be apparent that I have already begun to embark on making findings in this case, and it is therefore necessary to say something about what I have made of the evidence. I am satisfied that each of the four parties gave to me honest evidence in the sense that none of them told me anything that they actually believed to be an untruth, but I treat the evidence of all four of them with the greatest caution as the intensity of these disputes exacerbated over the years inevitably distorted everyone’s perspective and has led, as was raised in the experts’ reports, to some degree of rewriting of history. Accordingly, the way that I have gone at my assessment of the evidence in this case has been, first, to look at the external evidence – that is to say the documents and how the parties actually behaved over the years; secondly, to look at that which was not seriously disputed between them; thirdly, to look at the inherent probabilities of the case as they are generated by the external and undisputed evidence, and from that to build up a picture of what was going in this case which could, at the end, be tested against the actual oral evidence that was given to me. Those are the matters that have guided my approach to how things stood when the first child was born on [a date in] 2001.

[19]An instructive document in this case is to be found at C352, which is the letter written by the respondents to the applicants as early as September 2001. It makes it clear that there were differences and consequential difficulties over the roles that everybody expected to play or expected others to play in this family. It was apparent that the respondents thought that the applicants had taken more than they, the respondents, had wanted or intended to give. Nevertheless, it is equally clear that what was being discussed was the role of parties as parents in whatever capacity that might be.

[20]Those problems may have been accommodated from time to time but had never satisfactorily been resolved in the history of this case. Secondly, there have been numerous disputes about the level of contact that actually took place. I consider it deeply unprofitable to trawl the minutiae of the disputes between the parties. This case, at the end of the day, is not about adult disputes, it is about trying to accommodate the needs of two damaged children in terms of their experience of parenting.

[21]What is certainly true is that there was more contact and significantly more contact than was acknowledged by the respondents in the course of their oral evidence. If any matter established that it was a comparison between the second respondent’s diary entries and a perusal of the photographs, which resulted in an acknowledgement that that must indeed be the case. The actual quantity of contact is neither nor there. What matters is that there was a degree of regularity to the contact, that the children were clear about the contact, they were clear that the first applicant was daddy and that the second applicant was known as [a name]. There were birthdays and Christmases and Father’s Day cards, and all the things that you would expect to see where there is a relationship of parenting. All that the picture of contact does is to establish a parenting role for all four, and to establish in the concepts that I have tried to develop in my own thinking of the role of the women as principal parenters and the role of the men as secondary parenters.

[22]Next, it is important to observe what to an outsider is an almost incomprehensible position having regard to the present intensity of the disputes and the assertions by the parties, which has some support in the evidence, that these disputes have been ongoing for years.

[23]In 2004 all four agreed to repeat precisely the process that they had gone through with the result that the second girl was born on [a date in] 2005.

[24]What conclusions are to be drawn from this? It has to be the case that everybody went into that second arrangement with their eyes wide open about the issues that would be involved. Secondly, it must be the case that at least in 2004 all the parties were sufficiently content with the arrangements that were then on foot that they were prepared to go through it all again. Thirdly, it is equally clear that the men had developed a significant, even if it was not a particularly extensive role in the life of the older child, and it is inconceivable that the parties intended anything other than that the younger child would be treated in exactly the same way.

[25]It is not without significance that early staying contact developed before the birth of the second child, albeit not terribly long before it. But it is also the case that it must have been recognised on all sides that the principal attachments were going to be to the principal parents. So in 2004 the only conclusion that can sensibly be drawn is that the parties had reached a stage which, if not ideal, at the very least was regarded as a satisfactory and acceptable basis for proceeding to repeat.

[26]Of course, it was later in 2005, after the birth of the second child, that the applicants moved from their home in Southampton to an address very much closer to the respondents. It is equally beyond argument that all four adults were involved in that decision and all four adults were content with that decision, whatever their motivation for so being might have been.

[27]There were also a considerable number of disputes about holidays, about the giving of names and the question of an investment in a property in Poland in 2006. Once again, for the reasons already indicated, there is to be no profit for these children in a detailed ploughing over of the minutiae of these disputes, because there are a number of entirely common features.

[28]There were a number of holidays. Of that nobody doubts. They were no doubt frequently arranged by the women and the men joined in for part of the holidays. There is no doubt that the names were principally chosen by the women, but the men, at least the first applicant, had the opportunity to choose the older child’s middle name. I have to say that I find nothing sinister in any of that.

[29]There was an investment in a property in Poland. As it happens, that is the country of origin of the first applicant and, so far as I can judge, the children, if I may put it this way, appear to have dabbled profitably in things Polish. It is something that they can do that their friends probably cannot. Again, all these events, in my judgment, are consistent with the general picture that is firmly established of the respondents as the principal parents with the applicants playing a secondary role which never lost its parental nature.

[30]It might be worth asking, in so far as it can be reconstructed from the evidence, what one would have seen had one visited this family in one of the quiet patches, shall we say in early 2007. There is no doubt that one would have been aware of the complex structure of the family and the unusual nature of the relationships, of which, in fairness, all four adults were well aware. One could not have missed the fact that the principal parenting role was exercised by the respondents who provided to these children the two parent family model, but it is equally clear that it would have been impossible to miss the parental, however secondary, role that was being exercised by the applicants. The children entirely understood the nature of the relationships, even if they could not have articulated them and all the evidence suggests that they were comfortable with those relationships. Although one treats still photographs with a degree of caution because they are almost inevitably selected as providing cheerful reminders (otherwise one would not bother to take them), nevertheless it is difficult to avoid the conclusion that for much of the time between 2001 and 2008 there were essentially harmonious relationships within the network at least in so far as the children understood where their position was and what their relationships were.

[31]In 2008 it all went wrong. The applicants and the respondents recognised that that was so, and I daresay recognised that the whole situation has continued to deteriorate over the last three years so that, as a matter of external observation, the individual parties find it now difficult to the point of impossibility to give me a true picture of how things were when, say, the younger child’s birth was discussed, or, say, in one of the quiet periods like early 2007, to which I have referred. The evidence of the parties contains neither a convincing analysis nor convincing explanation of why things went as wrong as they did as quickly as they did.

[32]There are incidents that are raised like the so-called chicken incident, but apart from saying that the second applicant and the first respondent covered themselves with more shame than glory in that, it would be an utterly insignificant incident were it not for the fact that it was at a time when things were going wrong and the children were near enough at the moment of that incident to know that something untoward had happened. I have to confess that even having heard and read the evidence, I am not able to spell out the precise causes of why it all went wrong when it did with any degree of useful clarity beyond the obvious observation that there was increasing rancour over disagreement about the roles that the parties should or should not play in the lives of the children.

[33]However, the consequences of it all going wrong are much easier to discern. First, there was an increasingly elevated emotional tension in the case which I suspect has taken a greater toll on the first respondent than on anyone else, notwithstanding that the real battle in the case is between the first applicant and the second respondent, perhaps entirely unsurprisingly because it was their roles that were under particular scrutiny.

[34]Secondly, the first and second respondent have sought increasingly both to restrict the roles of the applicants and also to read back into the 1999/2000 discussions a very restricted role. It simply is that the second respondent’s assertion that it was always only an identity arrangement is wholly at variance with every bit of independent evidence at the time or later, and simply is at variance with the realities of anything up until 2008. On the other hand, the applicants, however understandably, have become increasingly vociferous about their roles, which they now seek to extend beyond the secondary parenting role with which in 2000 they would have been content.

[35]There have been repeated clashes between the parties, and especially the respondents, with the professionals instructed to assist in this case. I have no doubt that the respondents have felt that their role as principal parents was being challenged and undermined in these proceedings, and I daresay that was exacerbated by the issue of the residence application, however much the applicants may say, and perhaps justifiably, that it was a reaction of despair to what they and the professionals saw as the respondents intransigence over contact.

[36]Next, I have no doubt that the older child has become deeply enmeshed in all this, as appears from the quotation with which I opened this judgment. She has withdrawn effectively from contact and she has, as will happen in these kinds of cases, lined herself up with her principal carers and sought peace in simply distancing herself from a dispute over which she has no control.

[37]Moreover, the consequences of it all going wrong produces a sixth consequence, namely putting the younger children in an almost impossible position. She continues to have some contact with the applicants. She can sense, although I daresay she is not old enough to articulate it, the angst of the respondents exacerbated by the unhappiness of her older sister. The evidence suggests fairly strongly that while she is at contact she enjoys it, but it suggests with equal strength that she is quite unable to acknowledge that when in the presence of the respondents or her older sister. For a child of six that is an impossible burden to shoulder for any length of time.

[38]No wonder that there is now widespread concern at the welfare of the children, even if we have not yet reached the stage of local authority intervention. Is it, I ask myself, all beyond hope of retrieval? I think not. I think there are two potential routes forward. Over one, much the better one, I have no control at all. Over the other, I do, and although it is the poorer route in the end it may be the best place at which to start. Undoubtedly, the best route for these children is one that only the four adults in their life can deliver. This involves them re-reflecting over the last 12 years in the light of all that is said and has been said in the course of this hearing and seeking to recover the concepts with which, as I found it, they set out, namely a clear acknowledgement that the principal parenting role, the two parent role, if you like, belongs to the respondents, but the applicants have a real, albeit secondary, parenting role.

[39]The first applicant shares parental responsibility with the respondents, though it is clear that day to day decisions must be taken by the respondents and by them alone. It is when issues of health, elective treatment, education, moves of home, the major events of life, arise that the first applicant must be allowed to join in. Once that is recognised then the role of the applicants needs to be formalised in practical arrangements for contact. That route lies in the gift, so far as these children are concerned, of the four adults in their lives. Whether they choose to deliver that gift or not is a matter for their personal decision and which it is not open to me to compel or probably influence.

[40]The alternative route is for me, having spelt out my analysis of the proper role of the applicants, to find expression for that role in a defined contact order with which the applicants and the respondents are bound to comply, whatever they think of it, or the judgment on which it is based. The drawbacks of this approach are obvious, for all four adults know these children much better than I do and are much more likely than I am to find the best arrangements. But for so long as the applicants and the respondents cannot or will not agree on arrangements, then they will have to be made by the court, if only on the basis that anything is better than these children being sucked into an uncontrolled vortex of undisguised hostility and rancour.

[41]I have said all that I am going to say about the past. I have avoided most individual disputes of fact, partly because of my assessment of the lack of objectivity in the oral evidence, partly because it is the general trends and patterns that matter in this case and partly because I do not wish to give the parties any more sticks with which to beat each other. I have set out my views about the general expectations of the parties as they were when they both negotiated and practised those roles, not once but twice. It may well be that the respondents have got to raise their expectations of the applicants’ roles, and the applicants have got to lower their expectations of their own roles and accord proper reflection of the roles of the respondents. The relationships are uniquely crafted in this case and they are not, in my view, assisted by borrowing concepts from traditional but separated families.

[42]So to the future. It follows from what I have just said that I intend to follow neither of the models for contact advanced by the parties. I propose to set a level which represents my assessment of their respective proper roles in the lives of these two children. I will, of course, revisit these matters if necessary in a proper welfare hearing, but my present aim is to blend the practicable with a reflection of proper roles. At this point the rights of the adults must yield completely to the pressing needs of these two children. In my view contact with the younger needs to start and that it happens and happens quickly is far more important than the form that it takes. It seems to me essential that it should happen before the children go away on holiday on 7th August on a day which the parties may select, and in default of immediate agreement I will simply specify one. The respondents must make the younger available for visiting contact for three hours between two and five, if they so agree. If the parties wish the contact facilitator to be involved, so be it, but the duty of the respondents is to produce the child at the agreed handover point at the provided hour and for the applicants to return the child to that point at the specified hour.

[43]On return from holiday, perhaps the following weekend, or the weekend after if it is so agreed, there should, so far as the younger child is concerned, be a short period of staying contact from two o’clock on Saturday to five o’clock on Sunday, with collection and delivery as before. Again, the facilitator may be involved if the parties so agree. That should be repeated on the same terms one month later. Thereafter contact is to be for two nights – we are now taking about October – from ten o’clock on Saturday, perhaps to school on Monday, or, if it is not in term time, to eleven o’clock with the usual collection point, and so will continue until it can be reviewed by me at a proper welfare hearing. The contact warning will of course be attached to the order.

[44]My inquiries suggest that the court can make a welfare hearing available on either 16th November or 19th December, and the parties’ views on that will be sought.

[45]The purpose of this order is not to exclude the facilitator, but to make clear that the responsibility for effecting collection and delivery is attached to the four adult parties in this case and to no one else. Again, who carries out the actual handover is a matter for the parties, so long as they appreciate that they cannot abdicate personal responsibility for compliance by asking someone else to do it.

[46]Secondly, and this is of fundamental importance, all four parties must understand that they are entitled to vary these arrangements in any way in which they can agree between themselves, and at this stage such agreement to be evidenced in writing, but that in the absence of agreement my provisions are the default arrangements with which everyone is bound to comply. I do not want to interfere in the exercise of parental responsibility one jot more than I have to. As I say, I make it clear that if, for some reason, there is a significant shift in this case and people wish to make agreements they are absolutely free to do so.

[47]I regard the present residence application as currently an obstruction to contact and I propose to strike it out, whilst reminding the parties that the court can make any order under s.8 without a formal application (see s.10(1)(b) of the Act), but by the same token I affirm and remind myself that parental responsibility belongs to both respondents and to the first applicant.

[48]This matter, therefore, should be listed before me on either 16th November or 19th December, with an estimate of two days. I expect the parties to be able to agree a timetabling of evidence to the hearing, but that leaves three outstanding issues. The first is the role of the contact facilitator. I, personally, would welcome her continued involvement so long as there is an essential compliance with the orders of the court. If the parties are prepared to have her continued involvement I would welcome a report from her for the welfare hearing.

[49]Secondly, it is important that the minutes of the meeting that involved the therapist and the facilitator are made available, and I propose to direct that if, by Friday, 5th August, no agreement has been reached on the content of those minutes then the parties’ rival sets of minutes are to be served on the parties and filed with the court by 12th August.

[50]The third issue is the question of whether or not a forensic psychologist should be involved to assess these children. My instincts are not to be very keen about that, only because these children have had involvement with a lot of professionals, but I am not actually totally opposed to it. I think what I propose to do is to seek the views of the Guardian as to whether the Guardian would be assisted in the overall structure of the work by such an assessment. If she would not then I do not propose to direct it. If she does and if there is a psychologist who can report within the relevant timescale I would propose to give the Guardian permission to instruct them. I would propose that other parties should have the opportunity to join in the instruction should they wish to do so. No doubt the report of the psychologist could be brought into the timetable.

[51]That is as far as I intend to go in a judgment at this stage. _________