SITTING IN LEEDS (REMOTELY)
B e f o r e :
| Ms A
|- and -
The Local Authority
(By her Children's Guardian)
|Re E (Adoption by One Person)
Ms B in person
Mr Alex Taylor (instructed by Local Authority Solicitor) for the Local Authority
Mr Michael George (of JWP Solicitors Limited) for the Children's Guardian
Hearing dates: 28 April 2021
Crown Copyright ©
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
The Honourable Mr Justice Cobb:
"[Emma] was very much wanted by both myself and [Ms B]. We were both committed to her conception and have both played an equal role in her life from this time. I have been involved in all aspects of [Emma]'s care from birth, with the only exception being breastfeeding. This includes the sleepless nights, the hospital stays, teething, all her development leaps and her growth spurts. I continue to meet all of her needs, be those emotional, physical, behavioural and social… she calls me 'mummy'".
"[Ms A] and myself made the decision to have children. Although we are not in a relationship, our parenting and friendship and caring relationship is united, and [we] unconditionally love both of our children as a family. Although we are not living together we parent our children together as separated parents would. [Ms A] has the most loving, caring, and strong relationship with both children and are both treated the same. [Emma] and [Theo] are lucky to have such a wonderful inspirational parent….
… I have adopted [Theo] and I feel [Emma] should be no different. I want the same for [Emma]; she shouldn't feel any different as [Theo]. In the upbringing of both children it is incredibly important that we have this formalised, as this is what we have both wanted – from deciding to have children that we have a family together and that [Emma] and [Theo] remain together and both children have a place in both our families".
"[Ms B] is completely supportive of the plan for [Emma] to be adopted by [Ms A], this has always been the plan, and [Ms B] clearly sees this as being very much in [Emma's] best interests. [Ms B] stated that [Emma] is entirely integrated into the family of [Ms A]…. They are a close family unit and enjoy spending time together as a family … [Ms B] reported that she has little contact with her [wider] family except for her father but has a close relationship with [Ms A's]. All of the family members expressed their unwavering support of this adoption…".
The report concludes:
"I am satisfied that they are a close family unit and despite the change in relationship status, remain partners in parenting and will continue to co-parent the children. I believe they are prioritising the children's well-being and have worked out a coherent and realistic plan where the children will be cared for together across to family homes. … [Emma] is completely integrated into the family of [Ms A]. This is the only family she has ever known, and she is very much loved. …
… Although the couple are no longer in a romantic relationship I consider that they continue to have an enduring family relationship as they maintain a strong family ethic, they are working closely together, co-parenting both children as a team and have consistently considered the children's welfare as paramount. I believe they will strive to maintain a solid relationship so as to meet the needs of both children. Having met with both parents independently I believe that they share a common goal and vision as to how this will be achieved."
The statutory regime
"An adoption order is an order made by the Court on an application under section 50 or 51 giving parental responsibility for a child to the adopters or adopter".
"An application for an adoption order may be made by — (a) a couple, or (b) one person, but only if it is made under section 50 or 51 and one of the following conditions is met".
The conditions referred to above pertain to the domicile and habitual residence of the applicant(s) and the age of the subject child.
"An adoption order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent of the person to be adopted."
Who is a 'partner' for this purpose? Section 144(7) ACA 2002 ('General Interpretation') provides that:
"For the purposes of this Act, a person is the partner of a child's parent if the person and the parent are a couple but the person is not the child's parent."
How should we understand the term 'couple' in these circumstances? Section 144(4) ACA 2002 provides that:
"In this Act, a couple means – (a) a married couple, or (aa) two people who are civil partners of each other, or (b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship."
Section 144(5) ACA 2002 makes clear that partners in an enduring family relationship cannot be a person and his/her parent, grandparent, sister, brother, aunt, or uncle.
"(1) In this Act and enactments passed and instruments made after the coming into force of this section, references (however expressed) to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father and mother of either of them, or the father and mother of any person through whom the relationship is deduced, have or had been married to each other at any time" (emphasis by underlining added).
"These words are no doubt chosen so as not to require the residence of both in the same property. That is not surprising as historically many a parent has had to work abroad whilst the family remained at home without in anyway imperilling an enduring family relationship. Nor is that unusual today with people having to move jobs often at short notice. What is required is: first, an unambiguous intention to create and maintain family life, and secondly, a factual matrix consistent with that intention. That is clearly a question of fact and degree in each case" (§16) (emphasis by underlining added).
He further cited Re CC (Adoption Application: Separated Applicants)  2 FLR 281 where the court (Moylan J, as he then was) was again concerned with a joint application under section 50 ACA 2002 by a married couple. He referred to this authority to demonstrate that the fact that the applicant couple had separated in that case was not regarded as relevant to the question of the court's jurisdiction to make the order sought. Mr Taylor pointed out that there is no requirement in the ACA 2002 that a couple's marriage be subsisting at the time of an application. He rightly submits in my judgement that the state of a marriage is a relevant consideration under section 50 ACA 2002 as to whether the order should be made, not whether it can be made.
"The applicants must be –
(a) husband and wife,
(b) civil partners of each other, or
(c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other."
I found it instructive to consider a number of authorities (some of which I was referred to, some of which I was not) which have considered this phrase "living as partners in an enduring family relationship", and other key phrases in section 54 of the HFEA 2008, and I discuss them below, taking them in chronological order.
"X had his "home" with the commissioning parents, with both of them, albeit that they lived in separate houses. He plainly did not have his home with anyone else. His living arrangements were split between the commissioning father and the commissioning mother. It can fairly be said that that he lived with them."
In an earlier section of the judgment, §52, Sir James Munby P had laid the groundwork for interpreting the statute in this way:
"The starting point is clear and remains essentially unchanged from that identified by Lord Penzance in Howard v Bodington (1877) 2 PD 203 and most recently re-stated by Sir Stanley Burnton in Newbold and others v Coal Authority  EWCA Civ 584,  1 WLR 1288. I must consider section 54(3) having regard to and in the light of the statutory subject matter, the background, the purpose of the requirement (if known), its importance, its relation to the general object intended to be secured by the Act, and the actual or possible impact of non-compliance on the parties. The question, as posed by Lord Steyn in Regina v Soneji and another  UKHL 49,  1 AC 340, is, Can Parliament fairly be taken to have intended total invalidity? As Toulson LJ put it in Dharmaraj v Hounslow London Borough Council  EWCA Civ 312,  PTSR 1523, Is any departure from the precise letter of the statute, however minor, to be fatal? And the assumption, as Sir Stanley observed, must surely be that Parliament intended a "sensible" result." (emphasis by underlining added).
At §54 of the same judgment, Sir James Munby P said this:
"A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial)  INLR 424, 429, referred to as "the psychological relationship of parent and child with all its far-reaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible".
"… although the parents have separated, they remain married. The evidence indicates that despite the differences between them they both remain committed to the children and ensuring their needs are met",
"… to not construe it in such a way could have detrimental long-term consequences for the children and the applicants, which is precisely what the section sets out to prevent" (see §67-76 of the No.2 decision).
The fact that the commissioning parents were legally married in that case is noted, but what appears to have been of more consequence to the ultimate decision was (a) that the parents were committed to the children and (b) the consequences for the family of not making the order.
"… the families in which children live and are brought up are increasingly diverse and often more fluid than in the past; the enactment of the HFEA 2008 came about in recognition of this change" (§16).
" The aim of section 54 is to allow an order to be made which has a transformative effect on the legal relationship between the child and the applicants. The article 8 rights of the applicants and the child are engaged. N has lived with the applicants all her life and is biologically related to K. The effect of not making an order will be an interference with that family life in that their factual relationship will not be recognised by law, there will be no legal relationship between N and the applicants, she would be denied the social and emotional benefits of recognition of that relationship and would not have the legal reality that matches the day to day reality.
 When considering the provisions in section 54(2) in that purposive light it is clear the applicants were in an enduring family relationship at the time they made their application. Section 54(2) requires that the applicants must be two persons who are living as partners in an enduring family relationship, which they were when they made their application. In my judgment, in the absence of any other express time requirement, that requirement is satisfied in this case.
 The requirement in section 54 (4) (a) is also met as the evidence demonstrates that even though the applicants have been living in separate homes since August, N has always been with one of them since then and as a result her home has been with them, albeit divided between two properties".
"The HFEA 2008 sought to provide a comprehensive legal framework for those undertaking assisted conception, with the aim of securing the rights of any child born as a result. That policy and legislative aim remains intact if the order sought in this case is made."
"There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child's welfare, depending upon the circumstances of the particular case."
As indicated above, while Ms A is not the gestational or genetic parent of Emma, she is a psychological parent to Emma as the evidence (summarised above) indisputably reflects:
"§35 … the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating, and protecting. The phrase "psychological parent" gained most currency from the influential work of Goldstein, Freud, and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:
"A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent."
" From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation." (emphasis by underlining added).
"The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with the grain of the legislation'."
"In any given case, however, there may come a point where, standing back, the only proper conclusion is that the scale of what is proposed would go beyond any implication that could possibly be derived from reading the existing legislation in a way that was compatible with the Convention right in question. In that event, the boundary line will have been crossed and only Parliament can effect the necessary change."
"…such is the diversity of forms that the family takes in contemporary society that it is impossible to define, or even to describe at anything less than almost encyclopaedic length, what is meant by "family life" for the purposes of Article 8. The Strasbourg court, as I have said, has never sought to define what is meant by family life. More importantly for present purposes, and this is a point that requires emphasis, the Strasbourg court has never sought to identify any minimum requirements that must be shown if family life is to be held to exist. That is because there are none. In my judgment there is no single factor whose existence is crucial to the existence of family life, either in the abstract or even in the context of any particular type of family relationship".
"32. … where the existence of a family tie with a child has been established, the State must act in manner calculated to enable that tie to be developed and legal safeguards must be established that render possible as from the moment of birth or as soon as practicable thereafter the child's integration in his family …".
i) When interpreting legislative provisions, the court must have regard to the underlying purpose of the specific requirement within the Act, and ensure the interpretation does not 'go against the grain' of the intentions of Parliament and creates a 'sensible' result; this can include some consideration of child welfare, but child welfare will not be paramount;
ii) In interpreting the phrase "living as partners in an enduring family relationship" it is reasonable to have regard to the caselaw generated under section 54 HFEA 2008, given (a) the similar legal test; and (b) that the legal, personal, emotional, psychological, and social consequences of adoption orders and parental orders are so similar;
iii) The issue of whether people are living as partners in an enduring family relationship is a question of fact and degree, and it is a matter for the court to consider in every case;
iv) It is not necessary for the 'partners' to be sharing the same property in order to be living in a family relationship; what is required is an unambiguous intention to create and maintain family life and a factual matrix which is consistent with that intention;
v) Section 144 ACA 2002 should be read in a way which gives effect to Article 8, i.e., which does not create unnecessary or disproportionate interference with the right to respect the family life of all involved;
vi) There is no rule that requires that intimacy, conjugality, or co-habitation be a component of an enduring family relationship. These are not requirements for married applicants, nor are they requirements in relation to parental orders under the HFEA 2008 which requires applicants for that order to be "living as partners in an enduring family relationship."
vii) In the facts of this case, 'family life' exists between the Applicant, Ms A, and the child, Emma; a very notable aspect of that family life is the care and arrangements which Ms A and Ms B had previously made for Theo – much can be deduced about the relationships from this;
viii) Integrated family relationships have continued for all four members of this family notwithstanding the separation of Ms A and Ms B;
ix) The law permits me to conclude that Ms A and Ms B are living as partners in an enduring family relationship.