England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 January 2006

Mrs Justice Black :

1. D was born in 2000 and is now 5 years old. Her mother is Ms A. Her father is Mr B. She lives with her mother, her mother's long term partner, Ms C, and her half sister, E.
2. The circumstances of D's conception can be found set out in the judgment I gave concerning her in November 2001. In summary, Ms A and Ms C decided they would like to bring up a child together and, wanting the child to have a father figure in its life, they advertised for a man who would be interested in fathering a child. Mr B came forward and, after discussion, the decision was taken to go ahead. D was conceived following sexual intercourse between Ms A and Mr B.
3. As I explained in my earlier judgment, the arrangement presented more practical and emotional challenges than any of the adults had anticipated. They had not explored the ramifications of the plan sufficiently in advance.
4. The act of conception generated feelings between the three adults that played a significant part in throwing the plan substant ially off course at an early stage so that it was clear before the birth of the baby that there were problems. Ms A and Ms C felt that Mr B had turned out to be underhand and dangerous and was threatening their relationship. Mr B felt they considered he had fulfilled his purpose and was no longer needed.
5. From the outset, Mr B expected to be directly involved in the child's life. To a degree, Ms A and Ms C thought they wanted that too. Ms A told me their perfect scenario would probably have been for Mr B to see the child once every 3 or 4 weeks and perhaps more frequently if they turned out to become friends. However behind their apparently similar objectives, they were actually hoping for different things. Mr B was expecting something of the role of the absent parent after divorce who might share the child's leisure time equally with the child's mother and participate in decisions about the child whereas Ms A and Ms C intended that he should complement their primary care of the child by being a real father but by doing so through no more than relatively infrequent visits and benign and loving interest.
6. Everyone was very emotional following D's birth. As October 2000 wore on, Mr B took action for which I criticised him in my 2001 judgment. It included:

i) phoning excessively in an attempt to resolve things about D,

ii) sending frequent postcards lamenting his lack of contact and blaming Ms A and Ms C,

iii) indicating that when he came to court and got parental responsibility, Ms C would be out,

iv) trying to trace Ms A's mother by writing to all the people in the vicinity with Ms A's surname so that he could try to get her to mediate over contact and so that he could introduce himself to Ms A's family as D's father.

7. By the time the matter came before me in 2001 for determination of Mr B's application for contact with D and a parental responsibility order, there was a considerable degree of mistrust, resentment and uncertainty between the parties and they were all vulnerable. Ms A and Ms C felt that Mr B never stopped asking for more in relation to D and were worried that he would undermine D's security by pushing his role as her natural father and by denigrating their relationship and making her feel it was odd in some way. They also feared that contact with Mr B may impose irreparable stresses on their relationship. They considered that it would be in D's best interests not to have contact with Mr B until she was about 5 so that, amongst other things, she should have enough time to develop a proper sense of herself and how she fits in her family.
8. I took the view that it was unlikely that Mr B would drive a permanent wedge between Ms A and Ms C who were a thoughtful, perceptive, committed and loving couple whose relationship had stood the test of time. However, in the light of all the evidence, I could not dismiss as groundless the fear that Mr B may suggest that the situation of Ms A and Ms C as a lesbian couple was somehow wrong or that he may more generally prove to be a disruptive influence on D's life. When Mr B talked to the CAFCASS officer, Mr Weir, he had given Mr Weir a sense that he had in his mind a hierarchy which placed him, as a biological parent, ahead of Ms C. He said that he as D's father would have more to offer the child than Ms C, although he said he would not want to exclude her from "assisting in her care".
9. In making my decision concerning contact in 2001, I felt that it was very important to recognise that D's home is with her mother and Ms C and that that was where she would derive her primary security throughout her childhood. I considered that the order I made needed to be one which would not lead to the disruption of that security but would, so far as was possible, enable the relationship of Ms A and Ms C to grow and strengthen and D to develop a sense of their home as her primary home and an understanding of how the rest of her family fitted with that. I acknowledged that the fact that D would be being cared for by adults living in a lesbian relationship would introduce into her situation considerations – stresses possibly – that would not necessarily be present if her mother were in a heterosexual relationship. I said:

"Mr Weir anticipates that D, her mother and Ms C will face some discrimination at school. It seems to me that it may be more difficult for them than for heterosexual couples to establish themselves as a family, as the family which is providing the primary parenting for D. This difficulty may be in establishing their status to outsiders who they meet day to day in their lives, but there will also be work to be done with regard to Mr B's perception of them as a family and I think with regard to D's too. Not least D will have some extra questions about her background which children of heterosexual relationships do not. Ms A also spoke of the vulnerability that they feel because they are a lesbian couple with a considerable age difference between them."

10. However, Mr B was, in my view, another very important figure in her life. Normally, it is in a child's interests to have contact with her father where she is being brought up by her mother without him (or vice versa where the roles are reversed), although there may, of course, be particular features in a case that make this inappropriate. Here, I recognised that D would inevitably have many questions about her father and that there would be a great advantage in answering these to some extent by her having some contact with him. Provided it could be managed without significant disruption to her mother and her mother's relationship, it would contribute greatly to her selfesteem to know that she has a father who loves her and to see him from time to time.
11. Mr B's conduct in relation to D and her immediate family had not been helpful but, by November 2001, he accepted that he had made some stupid mistakes, led astray, he would say, by his emotions. I thought it early days to tell whether his emotions were yet sufficiently under control to enable him to hold back in his relations with D and whether he had arrived at a greater understanding of the importance of each of the adults in her life and of the relationship between Ms A and Ms C but I thought there were hopeful signs, including the fact that he had begun to attend counselling and was willing to continue to do so.
12. I made provision for limited monthly contact between D and her father to start very gradually at one hour with someone else present whom Ms A trusted, increasing after three visits to D and her father spending two hours on their own. The start of contact would be preceded by a period of further counselling for Mr B. In order to give Ms A and Ms C an additional sense of security, Mr B agreed also, at my suggestion, to undertake not to make any further applications in relation to contact for 12 months.
13. Since 2001, contact has been increased by the parties by agreement. D presently sees her father once each month for three and a half hours. There was a time when relations between the parties were rather better than they are now and contact lasted for up to six or seven hours at a time.
14. At the outset of this hearing, the parties were able to agree an increase in contact so that it will now take place every second Saturday in the month from 10 a.m. until 5 p.m. Mr B will go to D's home and they can either see each other there or go out together, depending on what she wants. There are also to be four extra outings of up to three or four hours which will take place at Easter, at Christmas, and twice during the summer holidays. Mr B wants the new plan to be seen as the arrangement for the next 12 months with the court reviewing contact (either at a fixed review or if he issues an application) at the end of that period with a view to increasing it. Ms A and Ms C would like the new arrangement to be seen as covering the next 3 years. I will deal with that later in my judgment although it is fair to say that it was far from being a major issue in the proceedings. There was a potential issue between the parties about Mr B bringing some of his family on some visits but that too was a low key matter.

Parental responsibility

15. The parties having taken such a sensible attitude to contact, the only real dispute has been about whether Mr B should now be granted the parental responsibility that he seeks in relation to D. On this the parties have been completely unable to agree, their positions being polarised.
16. Ms A has parental responsibility because she is D's mother. Ms C has parental responsibility as a result of the joint residence order I granted to her and Ms A at the conclusion of the 2001 hearing, at the creditable suggestion of Mr B.
17. Mr B has wanted parental responsibility for D from an early stage. He did not ultimately pursue his application for it at the hearing before me in 2001 because it was acknowledged on his behalf that, as things stood, I would not be prepared to grant it for reasons that can be found in my 2001 judgment. I was invited to adjourn the application, which I did; I must now determine it.
18. Section 3(1) Children Act 1989 defines parental responsibility as:

"….all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property."

19. This is a wide definition and there is no doubt that parental responsibility can be an inaccessible concept at the best of times, not infrequently difficult for lawyers to grasp and often very challenging for those who are not lawyers.
20. In one of the leading cases, Re H (Parental Responsibility) [1998] 1 FLR 855, Lady Justice Butler Sloss said:

"Parental responsibility is a question of status and is different in concept from the orders which may be made under s 8 in Part II of the Children Act. The grant of the application declares the status of the applicant as the father of that child. It has important implications for a father whose child might for example be the subject of an adoption application or a Hague Convention application. In each of those examples, a father with parental responsibility would have the right to be heard on the application. He would have the right to be consulted on schooling, serious medical problems, and other important occurrences in a child's life."

21. Mr B has offered to undertake not to exercise his parental responsibility to involve himself without Ms A and Ms C's consent in particular areas of D's life where they might anticipate (for reasons to which I shall come later) that problems may be caused, namely her medical treatment and her schooling. It is not presently contemplated that the circumstances are ever likely to give rise to a Hague Convention application. An adoption application by Ms A and Ms C is a real possibility and I will return to that but, that apart, the grant of parental responsibility to Mr B alongside the sort of undertaking that he offers would amount to a grant of a status, stripped of practical effect. In this refined form, the concept of parental responsibility becomes even more difficult to grapple with. What is plain, however, and entirely understandable, is that its importance is in no way diminished because the order concerns itself with something that is both intangible and difficult to define precisely.
22. In this case, the debate about parental responsibility is particularly finely tuned. Ms A and Ms C are entirely happy for Mr B to be recognised as D's "father" and for her to see him for regular contact. They do not agree to an order that, as they see it, recognises him as D's "parent". They see themselves and their two children as a family. They argue that they are D's parents and that if she were to have a third parent, it would compromise the family, affecting not only their relations with Mr B but also the way in which they, and D, are seen by others. For Mr B, to be D's father is simply not enough; he wishes to be recognised as a father and a parent and he perceives that a parental responsibility order would bring this recognition.

The need for expert evidence

23. The principles on which a parental responsibility application should be approached have been well settled for some time. The Court of Appeal has proceeded on the basis that s 1 Children Act applies to parental responsibility orders and the welfare of the child is therefore paramount. The three material matters set out by Balcombe LJ in Re H (Minors)(Local Authority: Parental Rights)(No 3) [1991] Fam 151 (the degree of commitment the father has shown towards the child, the degree of attachment between them and the reasons why the father is applying for the order) have been taken as the starting point but they are not the only factors and the court has a duty in each case to take into account all the individual circumstances and to decide whether the order proposed is in the best interests of the child.
24. None of the authorities has so far dealt, however, with the sort of situation that exists in this case where a same sex couple has deliberately decided to create a family and, with the knowledge of all concerned that it is their intention that they should be the primary carers, involves a man to father a baby.
25. I was not convinced in 2001 that it was appropriate, in these different cir cumstances, simply to apply the existing principles with what had become, in practice, a heavy concentration upon commitment, attachment and motivation. I was also conscious that society's views on arrangements such as these parties had embarked upon were still in the course of developing and that the impact of such arrangements upon the child was not yet established. In addition, it was very early days for this particular group of adults and their child and they were edging their way. In the circumstances, I expressed the view that a future judge may well be assisted by expert advice in addition to that offered by the CAFCASS officer.
26. Mr Weir has reported on parental responsibility again for this hearing as well as on the question of contact. He has been able to offer a valuable insight into the case, as he did on the last occasion. The approach he took to parental responsibility when preparing his report was, however, conditioned by the advice he received from CAFCASS Legal. His contribution on the question in his report of 29 June 2005 is simply this:

"I have taken legal advice from CAFCASS legal office. I am told that this appears to be a case where parental responsibility should be granted. Mr B clearly has a positive relationship with the child, he has demonstrated commitment and given the length of time of his involvement, he is not a threat to Ms A and Ms C's relationship."

27. I did not consider this to be a sufficiently sophisticated examination of the issues involved in this application and continued to be of the view that the question of parental responsibility in the present sort of circumstances was a novel one for the courts and neither simple nor straightforward. I therefore directed that the parties should consider whether expert evidence on that issue was necessary and, if the instruction of an expert was opposed, file sub missions on the question. Following the filing of sub missions in support of the instruction of an expert by Ms A and Ms C and against it by Mr B, I ruled that expert advice should be obtained, joined D as a party with Mr Weir acting as her guardian, and invited the guardian to instruct an appropriate expert.
28. The parties and the court have been fortunate that Dr Claire Sturge, consultant child and adolescent psychiatrist, was able to accept instructions to advise. She provided a report dated 11 November 2005 and gave oral evidence before me. She was particularly asked to consider the sociological and psychological impact (both in the short and long term) of granting the father parental responsibility (i) on the child (ii) on the primary family unit and (iii) on society's perception of the family.
29. Dr Sturge met all the parties, including D and the advice she has given on the specific features of the case and on more general considerations has been of great assistance.

Changing social and legal climate

30. This application falls to be decided at a time of considerable change in the law affecting same sex couples. It is now possible for a same sex couple to register their relationship as a civil partnership under The Civil Partnership Act 2004, the material provisions of which came into force on 5 December 2005. Civil partnerships are enduring relationships which end only on death, dissolution or annulment. In many ways, the law applicable to civil partners is aligned with the law relating to married couples, for instance the provision for financial relief corresponds to the provision made for financial relief in connection with marriages. With the commencement of the Adoption and Children Act 2002, it will be possible for a same sex couple to adopt a child, provided they are living together as partners in an enduring family relationship.
31. Same sex family arrangements already receive a considerable degree of recognition from the courts. In Re G (Residence: Same–Sex Partner) [2005] EWCA Civ 462, for example, the Court of Appeal, granting an appeal, made provision for a shared residence order in favour of an applicant who had lived in a same sex relationship for 8 years during which her partner had conceived 2 children by artificial insemination by an anonymous donor, thereby conferring parental responsibility on her for the children. Giving the judgment of the court, Thorpe LJ commented that the authorities demonstrate the evolution of judicial acceptance of the diversity of the family in modern society and made reference to authorities both in the family law field and outside it. We have come a long way from the days when a mother who began a lesbian relationship might well have found that it meant she was not permitted to have care of her children.
32. The speed with which the law responds to social change is not uniform. Sometimes change is well advanced and accepted in society before there is legal recognition of it. At other times, Parliament or the courts react to the prompt of a minority and are in the vanguard of change. Sometimes legislation is actually passed to provoke change - anti-discrimination provisions are perhaps an obvious example of this. It cannot be assumed, therefore, that the majority of the population necessarily supports the provisions of the Civil Partnerships Act or the provisions of the Adoption and Children Act which will permit adoption by a same sex couple.
33. Ms A and Ms C are anxious because they perceive same sex couples as having great difficulties in forming families which society recognises. Their experience is that most people focus on the biological mother as if she were a single mother of the type to which society has become used, treating the woman who is not the biological mother as redundant or in the background, rather than accepting the two women and their child as a family with two parents. Dr Sturge acknowledges this in her report when she says:

"The reason PR is such a loaded issue in this case relates to the potential implications of the decision on society and its perceptions: in their microcosm, this is precisely why Ms A and Ms C oppose it."

The problem is compounded, as Dr Sturge identifies, by the shortcomings of language which does not yet have the terms to deal with the new ways of living that are evolving.

34. It is in this climate where, it seems to me, the law is advancing at a pace which is probably quicker than the pace of change in the views of society in general, where new ways of living have not yet wholly crystallised, and where language has not yet evolved to accommodate them, that I must adjudicate upon the issue of parental responsibility for Mr B, equipped only with concepts and language which were not designed with this in mind.

Developments for this family since 2001

35. There have been a number of major developments in the family situation since 2001.
36. D's half sister E was born in 2003 and is now 2. She is the child of Ms A and Mr X and was conceived by artificial insemination. Mr X is in a long term homosexual partnership with Mr Y. Not wanting a repeat of the problems there had been with Mr B about D, Ms A and Ms C entered into a written agreement with Mr X and Mr Y about what their respective roles in E's life would be. It provides for the men to be acknowledged as "co-fathers" to E and the women as "co-mothers" and "primary carers" and deals with issues such as parental responsibility and contact. Proceedings in relation to contact with E and parental responsibility are pending.
37. Ms A, Ms C and the children have moved to live outside London.
38. D has grown from a baby into a bright, friendly, confident, secure little girl who has settled into a school which she may well be able to attend until she is 18. Dr Sturge did not find her muddled about her family. She told Dr Sturge that she is lucky because she has two mummies. She knows that she grew in her mother's tummy and she knows that Mr B is "Daddy" and calls him that. She knows that daddies are important but not why. She knows that Mr B loves her, as everyone acknowledges he does. She is comfortable to be with him and her relationship with him has meaning for her. She has no idea at the moment, however, about how babies begin to grow and therefore she does not know that, in the biological sense, Mr B is her father.
39. D has been diagnosed as suffering from juvenile idiopathic arthritis. The first sign of this was that she walked with a slight limp at times. Ms A and Ms C took her to the doctor in Spring 2003 and she was immediately referred to hospital where she was seen by Dr M5, a consultant paediatrician. She has had treatment since then and the condition does not seem to be unduly disabling. One worrying feature of it is that it can affect the eyes and D has shown signs of uveitis at times. This is being kept under careful review.
40. The discovery of D's illness led to an unfortunate incident with Mr B. Ms A and Ms C wrote to him on 5 June 2003 telling him about the preliminary diagnosis. They asked if he could provide information about any history in his family of this condition to assist the paediatrician. Mr B did not acknowledge the letter but Ms C and he discussed the question in a telephone conversation over a week later. Ms C gave Mr B the name of the paediatrician on the basis that he would get a doctor to write to her with his family history. In fact, Mr B spoke to his brother in law who is an orthopaedic surgeon who told him about the condition and told him that he should write to the paediatrician directly himself with the history. Mr B did this on 21 June 2003. The form of the letter is most regrettable. A family history is included but it is the letter accompanying it that was totally inappropriate. The letter records that it follows a talk by Mr B with Dr M5's secretary the previous week but nothing is known about the content of that conversation. The letter includes the following passage:

"From my last meeting with [Ms A and Ms C] I got the impression that they have very grave concerns about the treatment D is getting in the …. Hospital. [Ms C] mentioned that she would be asking you to refer them to a London Hospital or to a private clinic. [Ms C] did talk about the ARA test results and the concerns that this might affect D's eyesight.

This does raise concerns with me that this reaction by them to something that might pass and never trouble D again might lead to the insistence on extra tests that in themselves might lead to the creation of a condition that did not exist prior to the tests i.e. an allergic reaction to an anaesthetic or an infection arising out of explorative surgery as an example.

What I have said so far is based on 2 pieces of information. D has JRA in her right knee and she has an elevated ANA reading in her last blood test.

I feel the approach of wait and see what will develop with D is appropriate at the moment. There is no immediate need for a second opinion or the need to refer her to a London Hospital at the moment. I have total confidence in the care provided by you and the …. Hospital and that D will receive the best possible care under your guidance."

Mr B goes on to complain that lines of communication are strained with D's mother and her partner and that they are refusing to allow him any part in D's care and have only given him minimal information. He says that he would like to attend her next medical appointment as D's father but feels that her mother and partner will object to this. He asks to be briefed on any diagnosis there may be and the course of treatment recommended.

41. Predictably, the letter caused problems between the treating paediatrician and Ms A and Ms C.
42. Mr B said in evidence before me that he accepted that it was a mistake to have sent it. When I had heard all he had to say about the matter, however, I was left unsure that he really did understand how misguided the letter had been. Undoubtedly he realised that it had had a detrimental effect on his case and that, to that extent, it was an error. However, recognising a forensic error is not at all the same as a wholehearted acceptance that the letter should never have been sent and I noted that Mr B was still saying, at times, that it was a valid step for him to have taken at the time. He said he had had a discussion with Ms C about D's medical condition and felt that Ms C was overreacting, having read about the condition on the net. What he said about the "very grave concerns" about D's treatment derived, he told me, from the fact that Ms C had said they wanted a second opinion and transfer to a London Hospital. Ms C, whose evidence on this I accept, said that she reassured Mr B that they would get the best treatment they could for D and had located two centres of excellence. She said she did not make any criticism of Dr M5 who had in fact been very open and treated them very well.
43. There is no evidence, in my view, that Ms A and Ms C were overreacting with regard to D's illness. Inevitably they will have been anxious and, being intelligent and responsible women, they will have wished to research the condition and its treatment in whatever way they could and to ensure D got the best care possible. Ms C certainly could not be said to have expressed "very grave concerns" to Mr B; even if Ms A and Ms C had had such concerns, it was neither appropriate nor Mr B's place to decide unilaterally to take it up with Dr M5. He told me he wanted to convey to the doctor that he thought she was doing a good job. He said he felt like an outsider, ostracised and excluded from information about D. This feeling seems, in relation to the issue of medical treatment, to have been founded to an extent upon a misapprehension. Mr B's understanding seems to have been that time elapsed between Ms A and Ms C identifying a problem with D's knee and the visit to the consultant, during which he was told nothing. In fact, events had happened quickly. D had had some symptoms but Ms A and Ms C had put them down to her knocking herself. It was only on 23 May 2003, they eventually took her to see the nurse at the general practitioner's clinic and were referred to hospital immediately where they saw Dr M5 that day. There was little delay, therefore, in their telling Mr B what was happening.
44. When Ms A and Ms C discovered about the letter to Dr M5 and asked Mr B for a copy of it, he compounded the damage he had already done by refusing to provide one. He gave a number of reasons for this. They included firstly, the fact that he felt bullied by Ms A and Ms C because they said that they would only continue to keep him informed of D's progress if he provided the letter and he was not prepared to respond to bullying and secondly, that the letter included confidential family medical information. Reasons such as this were no excuse. The confidential family information was contained on separate sheets and could have been kept back when a copy of the letter itself was sent on. As to the terms of the request for a copy, it is understandable that it was made in firm language. Ms A and Ms C were perfectly entitled to see a copy of the letter which had harmed their relationship with D's treating paediatrician; indeed they needed to do so. A copy of the letter only became available over two years later when Dr Sturge obtained it.
45. I thought at one time that when Mr B acted in an ill considered way as he had in the respects that I identified in 2001 and did again in relation to this letter to Dr M5, it was quite possibly because he responded too hastily whilst in the grip of his initial emotions. Dr Sturge seemed also to have taken this view. She told me she did not think he wrote the letter malignly but that it illustrated how his emotions take him over and his judgment goes. I was accordingly surprised to hear Mr B say later in the evidence, after Dr Sturge had been and gone, that the letter to Dr M5 took a week to write and was not an impulsive thing. I have concluded that he can, therefore, show rather more enduring lapses of judgment. Dr Sturge commented, very validly I thought, that he has difficulty in predicting the effect his behaviour will have and the gestation period of the letter indicates that his ability does not necessarily improve with reflection over time.
46. It is pointed out that there has been no recurrence of the letter or anything of the kind in relation to D's medical treatment. This must, however, be seen in the light of the fact that Mr B is content with the full information he is now receiving about D's health. I am not completely confident of how he would react if he ceased to feel he was being kept in the picture. I noted that when it was put to Dr Sturge that the fact that Mr B said he acknowledged his letter was mistaken and that there had been no further incidents over medical matters bode well for the future, she was not sure either.
47. What happened when a contact visit clashed with D's school open day causes further concern. After careful research, Ms A and Ms C had chosen a school where they wished D to be educated. It was some distance out of London. There was a process of selection for places and they learned, with discomfort, that the open day which they felt could be an influential part of the process was scheduled to take place on D's fourth birthday, 9 October 2004. Mr B had been looking forward for a very long time to having contact on that day and was intending to bring his mother from Ireland to see D. Ms A and Ms C knew he would be very upset and offered to reschedule the contact to any other date of Mr B's choice. Having set his heart on birthday contact, he was not prepared to agree. It is important to record that he did not know, because Ms A and Ms C had not told him, that the school was out of London and could not understand why D could not go to the open day and see him on the same day. Ms A and Ms C did not want him to know where it was and they particularly did not want D to tell Mr B where they had been that day, as they feared she might do if she saw him when they were just about to go to the open day or had just returned. He told them that he would track down the school by an internet search and would telephone to change the arrangements. This unnerved Ms A and Ms C. The competition for the school was stiff and they felt they were already an "unusual family" (as they put it) and had a daughter with health problems so a father who caused complications would be one problem too many and D would not be accepted. In the event, Mr B did try to find out which school was involved but failed because he was searching the London area. He told me that if he had identified the school, he did intend to contact it directly to reschedule the appointment. His evidence made it plain that he had not thought about the consequences that this might have had for D's application or, for example, that it might reveal that there was a dispute between Ms A and Ms C and himself. He seems to have had his eyes focussed entirely on his own goal of seeing D on her birthday. He agreed now that this was not a responsible way to behave. As it turned out, an accommodation was reached, and contact took place later on on D's birthday, after the open day, and went smoothly.
48. Just as with the letter to Dr M5, there has been no repetition of problem behaviour over D's schooling. Mr B promised not to contact the school and has not done so, although he was told the name of it by Ms C on the day a place was offered to D. The impression he gave in evidence, however, was that although he was confident that Ms A and Ms C would ensure that D got a good education, he would like parental responsibility in case relationships broke down with them and information about how D was doing was no longer as forthcoming, so that he could obtain it independently. He said that he would not attend school events unless by agreement and Ms A and Ms C, for their part, made it clear that they would respect D's wishes if she wanted her father there at school plays, concerts and other event s. He also made the offer that I have already mentioned to be bound by a more formal promise by way of further security for Ms A and Ms C.
49. On 8 March 2003, during a period when relations between the parties were rather difficult, Mr B told Ms A and Ms C during a telephone conversation that he needed to see much more of D to make sure she was "all right". According to Ms A's evidence, he claimed he had seen a large bruise on her forehead a month earlier and had become concerned that the reason they did not want him to see more of her might be that they were trying to hide something. It was clear to Ms A and Ms C that he was suggesting D may have been physically abused. Mr B told me that he accepted that children ran into things but the way in which Ms A and Ms C handled the situation with him, denying there was anything there, left him with an impression that they were trying to hide something. Ms A and Ms C's case was that they did not deny anything but asked him to explain what he was saying. Mr B accepted now that he probably overreacted and was wrong. He did seem to have some appreciation of how it would have felt to them to be accused in this way. I have no doubt that because Ms A and Ms C feel vulnerable as a family already because of society's view of them, they would be all the more easily undermined by an insinuation of this type. That is not to say that Mr B did not have genuine feelings of anxiety about the situation. I accept that he probably did, particularly as he cares so much about D. No doubt they were exacerbated by the problems there were at the time over contact. Whatever his anxieties, however, he has to be careful how he handles delicate matters such as this and on this occasion he concedes he misjudged things.
50. There was an unfortunate exchange involving E's fathers which, I think, must have been at around this time too. Shortly after making his court application, Mr B telephoned Mr X and Mr Y and said that Ms C had called them "evil" and told him they were "abusing" D. When Ms A and Ms C learned of this assertion, they insisted he apologise to Mr X and Mr Y. Mr B says it was put to him that if he did not do this, contact would be stopped. After initially refusing to do so, in April 2005, he did write a very short letter saying he was sorry for any upset caused. It seems that Ms A and Ms C had made observations to Mr B about the way that Mr X and Mr Y treated D, possibly as far back as autumn 2004. As far as I can understand it, the problem was that D was treated less favourably than E at times. There was an incident when they brought lots of presents for E and hardly anything at all for D. On one meeting, in December 2004 which was the first time the fathers met, the problem was rather the reverse. Mr X and Mr Y called D "darling" in the presence of Mr B when she ran off from him to them. This sort of endearment was uncharacteristic and Ms A and Ms C thought it unfair to use it in these circumstances. It has provoked them to say that Mr X and Mr Y were "bastards" but they deny that they called them evil or said anything about them abusing D or gave cause for Mr B ringing the other two and saying what he did. It is difficult to condemn Mr B roundly for what happened with Mr X and Mr Y. The dynamics between Mr X and Mr Y and the children which Ms A and Ms C were describing could well have been dealt with by them and it would have been more prudent for Mr B to have stayed out of it; D's welfare did not require him to go wading in. As for Ms A and Ms C, it would have been more prudent if, knowing him as they did, they had recognised that their comments to him on the behaviour of Mr X and Mr Y might wind him up and had refrained from going along that path with him. The telephone call he made cannot have helped the prospects of Ms A and Ms C coming to an amicable arrangement with Mr X and Mr Y. On the other hand, it has to be taken into account that this was a time of some turmoil. Court applications were being launched by Mr B, Mr X and Mr Y. Mr X and Mr Y were saying they were applying for contact with D as well as E. Ms A and Ms C had said to Mr B in October 2004 that their solicitor thought it would helpful if he were to send a letter to court objecting to Mr X and Mr Y's application for contact to D and Mr B had, indeed, written in November 2004. Mr B had therefore been invited to set himself against Mr X and Mr Y in this sense. My overall view of the unfortunate conversation between Mr B, Mr X and Mr Y was simply that it was rather a pity that better judgment and more restraint was not exercised all round.
51. These are not the only problems there have been between the parties since 2001. There have been issues over timekeeping when Mr B did not bring D back on time in February 2003 and did not phone, for instance, and in February 2005 over staying on longer than he should have done at the end of a contact visit, ostensibly to "protect" D from Mr X and Mr Y but really, he agreed in evidence, just to get more time with his daughter. Being realistic, a certain amount of difficulty is not abnormal and I do not intend to pick out any further problems for specific examination in this judgment. There must have been many contacts where things went tolerably well and I know that there has been a considerable amount of constructive co operation, much of it, it seems, between Ms C and Mr B. One excellent example is how the parties have managed to accommodate contact in D's home if that is what she wants, rather than an outing.
52. I did, however, note one particular example of a difficult contact that was not described in the statements or addressed by Mr B in evidence because it was not put to him. According to Ms C's description in her oral evidence, she had been round to the neighbour's with D to see a new puppy when she noticed Mr B was already there in the street, waiting for his contact. The neighbours were agog to see D's father. Mr B became emotional over the duration of contact and fell on his knees in the street, weeping and kissing Ms C's feet, then bobbing up and down, which made her particularly uncomfortable because it appeared as a parody of praying and the neighbours on the other side were Muslims. Fortunately D did not see the scene but, if accurate, it is an illustration of how far things can go if Mr B does not keep a grip on his emotions. On the very positive side, however, this happened around two years ago and I am encouraged that I was not told of any more recent repeat.
53. One matter that has plainly hurt Mr B is the use of the term "sperm donor" to refer to him. I am satisfied that Ms A and Ms C are promoting Mr B in D's eyes and that they understand how important it is that she has a good image of her father. Yet, in other contexts (though not, they would say, to ordinary lay people) they have called him a sperm donor. Miss A said in oral evidence, "Technically I believe he is a sperm donor to a lesbian couple.", although she said that, although she occasionally used the term "sperm donor", she tended to refer to him as a "known donor". It is not at all surprising that Mr B told me that being referred to as a "sperm donor" made him feel ostracised. Nobody intended that his role would be confined in that way at the outset and, as his relationship with D has developed, the term has become even less appropriate. He is D's father. Rather technical terms such as "sperm donor" which depersonalise him and minimise his standing in D's life are, in my view, unhelpful. I suspect that Ms A and Ms C's use of such a term is a feature of their anxiety about establishing the status of their family without the complication of a third parent and in order to attempt to distinguish their situation from that of the divorced or separated heterosexual family. I agree that it is also material that when Mr B replied to their initial advertisement he himself said he thought he had all the qualities they were looking for in a "donor", so was not at that stage wholly averse to the term. But for the future, I hope that the term will drop out of currency in this sort of context.

Issues raised by Dr Sturge

54. As Dr Sturge recognises with a degree of discomfort, the issues upon which she has been asked to advise do not all fit comfortably into her discipline. In order to address them properly, she has commented on some of the more general sociological issues which go beyond the people she has assessed in the case. Her contribution has been extremely helpful. Whilst she is disadvantaged in some ways by the limits of her professional expertise, no expert would, I think, have had experience or a professional qualification which would have embraced all the aspects of the present problem and she has brought to the case her wisdom and her experience of working as a child psychiatrist with all sorts of families, supported by a review that she has carried out of the available literature.
55. I intend to set out Dr Sturge's advice rather more fully than I might normally do because it may be of interest and assistance in other cases of this kind in future and may obviate the need to make repeated calls on experts for guidance in similar situatio ns. Her report was obviously tailored to this particular case and it is difficult to do it justice when selecting passages to quote in this judgment. I was anxious not to fragment it unduly and it has not therefore always been possible to collate what she said under discrete headings, although I have attempted to do that in so far as possible.
56. The report begins with an important reminder that the issue of parental responsibility is a separate one from that of D's need for a meaningful relationship with her biological father. She introduces her discussion of the question in this way:

"8) To me, one central issue is a societal one. Is society going to recognise a lesbian partnership with children as a family?

9) The second central point is how the biological father is treated in such a situation. There is no exact analogy. For me the nearest is surrogacy, where the woman bearing the child gives up all her rights as a parent despite her role in bringing the child into the world (whether or not she is the biolo gical parent). A lesbian couple could be seen as similar to an infertile couple, let us say for the sake of argument married, and as when it is the man who is infertile, seeking fertilisation through IVF or sexual intercourse. No one would in that case be promoting the "donor father" having PR. The big difference in the latter case is that the "secret" could be withheld from the child. In the case of two lesbian parents, at some stage, that a man was involved in their conception, will become apparent to the child and others will raise this. "

57. Dr Sturge refers to the deficiencies of our language in the present context, pointing out that there is "a range of difficulties that the present terminology does not cover", including whether two women can be "parents", whether children's psychological thinking can accommodate three "parents", and what the biological father should be called if not a "parent". "Mummy" and "Daddy" and the variants on these names are readily recognisable but there is no recognised name for the woman or man in a same sex relationship who stands in the position of a parent but does not have a biological relationship to the child of the family. When this case was in front of me in 2001, Ms A and Ms C did not know what terms they would use although, since then, they have become "Mummy" and "Ma". All this illustrates, as Dr Sturge says:

"…just how deep rooted concepts and language are in relation to families and that the law, in a sense, pre-empts ways of understanding new family structures."

She says:

"I believe if the Court can find appropriate terms to refer to the parties in this case, the issue will be solved."

This is an interesting proposition and one with which to an extent I agree, resisting the temptation to enter into a debate on the role of language in social change and human relationships. The difficulty is in identifying or devising the words. Although Dr Sturge lists a number of terms which might be used, it is clear that she has struggled to make a suggestion with which she was happy. She comments, rightly, that a role title for the second woman, Ms C in this case, is particularly difficult to find which explains why Ms C (as many women in this situation) feels and is so particularly vulnerable. She poses a question in the introductory section of her report that is in part linguistic and in part much more fundamental:

"12) …. can a father who shows interest and commitment be a father and not a parent?"

58. Dr Sturge's report recognises the unusualness of the family structure in which D lives, saying:

"14) From D's perspective, the situation is very much outside of the societal norm. She cannot as yet grasp the significance of a father but knows which one of the three fathers is hers and which two E's.

15) If one were to draw a family relationship tree, then D's situation is complex: a father who is a bisexual and is married to a bisexual; a mother who is a Lesbian and lives with a second mother to D who has no biological relationship to her (D). Two other fathers – both gay, one of whom is and one of whom is not the biological father of E. E is her half-sister and shares the same biological mother.

16) The situation is very different from and in most ways more complex than any of the analogies."

59. As to the impact upon D, she says, in a passage concerned with the shortcomings of language:

120) Another, related issue but one more specifically relevant from the child's perspective, is how obvious the family anomaly is to others. In this sense D will face sexuality and gender issues at a young (and I would say inappropriately young) age. Those around her, particularly her peers, will realise D speaking of Ma and Mummy indicates two mothers and this will arouse much curiosity. This will raise questions like can two women create a child? Do they ha ve sex? Is there a father and, if so, how does he fit in? The facts of life themselves will be challenged as D and her peers try to come to terms with the mysterious and puzzling business of sexual relationships and making babies. Children in step-families do not face these problems in the same way: until they choose to explain other children will assume the step-parent is the other, natural parent. There is no glaring anomaly. With single mothers, other children simply assume there is a daddy "somewhere". It does not challenge their understanding of families and mummies and daddies.

….

122) There is, of course, the issue of prejudice, teasing, bullying etc. Research would suggest children deal with this relatively well. If D continues to feel really secure she will have the resilience to deal with this with the support of her carers."

60. Later, dealing with the same sorts of issues, she says:

"154) D may at times feel "abnormal" because of the difference between her family and that of other children, because of comments and because she has to think about sexuality issues in a more head on way than most children.

...

161) D is likely to meet prejudice. Her school mates will soon identify she is in an anomalous family and make comments. If confident and resilient, she will be able to weather these and other children will simply lose their curiosity and drop the subject.

162) D will no doubt refer to the fact that she has a father who lives elsewhere (she already does and it is healthy). She might feel she has to exp lain more if she is teased about not having one.

163) And society as a whole? Again, they will see D's situation as unusual and probably as "abnormal". There is likely to be gossip. There are likely to be embarrassments that other children would not have to face."

61. Dr Sturge does not see any of the possible analogies for D's situation as close analogies. I have quoted at paragraph 56 above her comments on the analogy of surrogacy. Elsewhere in her report she suggests that the nearest analogy would be where because of infertility in a heterosexual couple, the husband encouraged his wife to have a brief affair or to obtain sperm from a known male in order to get pregnant. Another example would be a brief affair or "one night stand" where, when the woman discovers she is pregnant, another man in the wings quickly steps in and marries her, knowing the child is not his. She says:

"139) The central difference from the examples above is that the couple are lesbian and because of that there is the glaring fact that both cannot be the child's biological parents. It is far more difficult … for this family to be seen within society as a "family". There is an inherent prejudice in society in how it regards "normal" versus gay families. This is not surprising as the idea of gay families challenges the very basis of biology determining reproduction.

140) But to some extent the same principles apply to the other situations. I have on a number of occasions been involved with small children who have a "father" who is involved daily in their lives and is their source of security and support (in fact a substitute parent). But then there is another "outside father" (in fact the biological parent) who, for reasons unknown to the child of a young age, considers himself as or more important than the man providing parental care.

141) It is very difficult to try and help the child make sense of this. And when older and aware of the implications there is still the tension between who is who and who is more important – the parenting father or the biological father.

142) One could see the adjustment of society to homosexuality as a staged process. The existence of homosexuality and the right of individuals to express their individual sexual orientation is beginning to be accepted and respected. The second stage is the acceptance of gay partnerships which many find difficult and indeed many gay couples still try to keep this information from others. The third stage is the acceptance of gay families and whether or not such families can be complete and "stand alone", even without one of the biological parents. I think society, as this case illustrates, has hardly begun to give this due consideration. Finally, society needs to get its head round the issues of insemination by anonymous sperm donors or known sperm donors and their part in the child's life. With homosexual men, the situation is even more complex – a family can only be formed through fostering or adoption (or surrogacy).

143) Parental responsibility to a third, outside the family individual, in any situation, potentially undermines the completeness of the nuclear family unit. It is a signal of anomaly.

144) Central to all the issues referred to above is how the extending of the acceptance and rights of lesbian and gay homosexual couples, including those of reproduction, responsibility for children's care and forming families is understood.

145) I am interpreting this to mean that empowering homosexual couples to form families is one of the underlying intentions and, therefore, by extension that the law and society should act to support the formation of such families and should act to protect their integrity. "

62. Dr Sturge was struck by the degree to which Ms A and Ms C feel threatened by societal norms and her report recognises the validity of their concerns in this regard. She says in the report that she has a sense of their having a greater mission than just their own in getting gay families recognised. This was explored in evidence and it became clear that Dr Sturge did not intend to suggest that they are militant campaigners but to recognise that they are part of a minority group for whom the point at issue is an important one. Dr Sturge pointed out that it is normal for members of an oppressed or minority group to support each other. When Ms A and Ms C gave evidence, I got no sense that they were motivated by a wider political agenda. I was entirely satisfied that their motivation is the welfare of D and the welfare of their family. This assessment is in line with Dr Sturge's view that "the wish to form and be seen as a "real" and complete family which is accepted as such by the world at large and which is stable and provides security for the two girls" is an important motivating factor for them. However, I was also in agreement with Dr Sturge that their minority position in society is a source of pressure for them. Dr Sturge said that they feel, and are correct in feeling, that a lot of life is a struggle to assert themselves and to get recognition. It was plain from her evidence that Dr Sturge did not think that recent changes in the law were going to alter this rapidly.
63. Dr Sturge commented that the high level of intellectual functioning of both Ms A and Ms C is striking. She considered that with some exceptions, issues had been given a great deal of thought and sensible analysis. Both women came across as highly childcentred. I agree with this analysis. Ms A and Ms C are different, complementary characters. Ms A comes across to me as more prickly – at first sight perhaps more vulnerable – in relation to Mr B, his involvement in D's life and the situation of the family in society. Ms C gives an impression of calm and it is noteworthy that it is she who tends to sort things out with Mr B when it comes to arrangements about D; I get the impression that she has a considerable ability to be conciliatory. Below the surface, however, in my judgment both women are suffering from the stress of their situation. Society challenges them anyway, passively even if not directly. Trying to resolve the question of Mr B's role and being involved in these court proceedings, and the court proceedings in relation to E, is a more overt stress upon them. Ms A said in evidence that it becomes your focus and never goes away. She sees herself having to "protect" the children. I am fairly sure she also protects Ms C, although she may not recognise that she is doing it, and that it is the protective role that she adopts that leads her to come across in evidence as edgy, intellectual, a bit rigid, and rather deprecating of Mr B. I suspect that this is misleading and not at all how I would find her were I ever to have the opportunity to see her relieved of these pressures. Conversely, Ms C's apparent equilibrium and capability to deal constructively with the issues conceal a vulnerability which was revealed in the evidence when she said to me that,

"there are times when I look to the future and think I will grow to be an embarrassment to the girls - I have no one except [Ms A], the fathers have the world with them - and that it would be more dignified if I would bow out. On occasions, I have concluded that and then [Ms A] persuaded me out of it."

64. Ms A and Ms C told Dr Sturge that they were wholly committed to their relationship with each other and would like to "marry". They talked of this in court too, indicating that they intended to register their partnership in the near future. Dr Sturge observed that in her meeting with them, they showed great respect for each other and there was an unusually high level of openness with her and with each other. I was left in absolutely no doubt about their love for each other and mutual commitment. I thought in 2001 that their relationship would stand any challenges that may arise from continuing contact with Mr B and it has. I have no doubt now that it is well placed to weather such difficulties as may be ahead. Having said that, I was struck by Ms C's fear that she may become an embarrassment to the children. I hope that she will not allow herself to construe things in this way because if she allowed that sort of analysis to prevail, her generosity and her concern for the welfare of the children could lead her to withdraw from the family because of her love for them. Whilst she might, fleetingly, think this the best course, it is very unlikely in my view that it would be because it would strike a fatal blow to the stability and solid family structure that is so important for the children. The fact that this sort of thought has gone through her head shows how important it is to reinforce her position in the family both within it and in relation to society in general which is inclined to side- line her. Dr Sturge classes her as the most vulnerable person in this situation, whom society will view "to some extent as the cuckoo in the nest", being likely to treat Mr B's views as the more determinant.
65. Mr B's position is no more straightforward than that of Ms A and Ms C. Dr Sturge found him to be an anxious, emotional, quite vulnerable man, intelligent, rational and thoughtful but not a good listener because he was too pre-occupied with keeping his emotions under control and with his own "hurts" (his word) which he was at pains to suppress. She considered him to be intellectual and problem solving in the way that he tackled problems – dissipating anger, recognising the need for patience, acknowledging that D has to work out her own life in the midst of all the chaos – but equally, clear and confident that he will play a major role in her life. She made the observation that he has a strong feminine side to his personality. The relevance of that to the present issue is that he came across to her very much as a mother would who had had her child removed from her. She thought him far more overwhelmed by finding himself a parent than he expected. I would endorse what Dr Sturge says in this particular respect and add that Mr B was not alone in being overwhelmed by his experience. One of the things that struck me most forcefully in this case was how, notwithstanding that they are all highly intelligent and self-possessed individuals, biology had ambushed all of the adults in one way or another, whether it be in the unexpected impact of the arrangements for D's conception or the unanticipated strength of emotions once D was born.
66. Dr Sturge said this of Mr B:

" He is… highly maternal and D will experience from him an unusual, but perhaps in many ways more nurturing, relationship … than from many fathers….He is by nature someone who is anxious and emotional, maternal and nurturing in his need for involvement with D. This means his interest and concern in her medical complaints and in the details of her daily life is greater and more emotionally important to Mr B than to many fathers. This is likely to drive him to be intrusive on the family at times. And D does not only have the issues of three potential parents but three potential mothers."

67. Mr B did not come over to Dr Sturge as vindictive about Ms A and Ms C and he was positive about their care of D. However he did tend to be more negative about Ms C, as if she were his competitor, for example emphasising her age several times. Dr Sturge thought the competing maternal qualities of Mr B were another reason making Ms C feel vulnerable and potentially redundant.
68. I agreed with Dr Sturge's assessment of Mr B when I heard him in the witness box. He is in waters which are uncharted. D is his first, and only, child. He obviously wants to be a father and a proper parent to her which is absolutely understandable and probably innate. And yet, whatever his hopes for involvement at the beginning, he embarked upon the enterprise knowing that his role as a father could not be a traditional one. If it becomes a traditional role, it threatens the family in which she lives and that does not serve her interests. He has still to resolve this tension for himself.
69. It is uncomfortable for parties to read analyses of their personalities and approaches in experts' reports and in judgments such as this. There is inevitably a concentration on features which might be problematic. It is therefore particularly important that I should underline what Dr Sturge said in oral evidence about the adults in this case. She said:

"All three are the most remarkable people and only D is more remarkable. She has lots of benefits."

With that, I entirely agree.

70. Before I turn to Dr Sturge's views on the central issue of the impact of granting or not granting parental responsibility to Mr B, I want to refer to the research material that she has reviewed. I can do this briefly because the short point is that the existing research does not help very much with the specific situation under consideration and there is very little that is directly relevant. Dr Sturge summarises the position thus:

"130) The research literature tells us that D is likely to thrive, is not more likely than other children to be lesbian and is likely to be able to deal with discrimination. It also tells us that D is going to thrive even in the absence of a father having a role in her life. It does not tell us whether the absence or presence of a biological father is an additional help or hindrance nor, in particular, the effect of greater involvement in a "visible" sense by a father when this is so vehemently opposed by the central couple."

71. Dr Sturge begins her consideration of the central issue concerning parental responsibility thus:

"109) The brief answer [to the questions put to her] is that per se the question of PR, whether granted or withheld, will have little or no direct impact on D. The concept will have no meaning for D (in the same way it does not for the general public, here the Children Act has failed because this idea of parental responsibility is not recognised) until someone tells her about it and explains. If no-one did, she might remain permanently in ignorance although her studies may lead her into an area that makes her aware of this issue. So, she may, in adolescence if not told or sooner if told, realise there is such a thing legally that does have relevance to her father's role in her life.

110) In terms of the importance of her father and the quality of her relationship with him, this will largely depend on the amount and quality of contact. What Mr B says, and my assessment supports this statement, is that his commitment to D will be unaffected by PR."

111) What will be different for D if her father were to be granted parental responsibility is his visibility: his involvement in decision making, his presence at important events (doctor's appointments, school open evening and events and other things that he becomes aware of). This will affect peoples' awareness of the importance of D's father and, in this sense, give him recognition and some authority.

112) I shall refer to this role, endowed by PR, as "visibility" for brevity's sake.

113) Unfortunately, it may be that D's main awareness of this visibility is:

- When there are disagreements, particularly in relation to decisions, between Mr B and the "parents" with whom she lives;

- A consciousness of the resentment from Ma and Mummy when Mr B, in their eyes, intrudes on events pertinent to D;

- Increased reference to her father outside of home and noting that others see him as important in her life and in decisions about her.

114) There is a risk that she will be required to keep certain things secret so as to exclude Mr B."

72. She identifies the following pros and cons for D of Mr B having parental responsibility:

"152) If he has PR, he will be more of a presence in her life and she will be more aware of him as someone who, like Ma and Mummy, makes decisions and comes to important events in her life – at school or when she is unwell.

153) If he does not have PR, D will view him as more peripheral and see Ma, Mummy and E as constituting her family and the people who take all responsibility for her."

73. However, having considered issues to do with D's development and identity formation, she does not see the parental responsibility issue as having any significant importance in itself for her. It is contact and knowledge of her father and his family which does.
74. Dr Sturge find s it hard to say whether the visibility of her father would help or hinder D in explaining her position to others. She considers that if anything it is likely to increase curiosity about her conception. It would also signal the anomalous nature of the family and potentially undermine its completeness.
75. For Dr Sturge, the parental responsibility question "157) … revolves around the integrity and stability of the family. This in turn will determine D's stability and security and ultimately happiness."
76. Her consideration of that issue involves an evaluation of the degree to which Mr B would seek to involve himself in D's life. Dr Sturge's assessment was that he would exercise any rights that he had to establish a central, albeit shared, role. She says:

"178) I do believe the couple's fear that Mr B will want to be very involved to be correct; he talks as if he wants to be part of D's every moment and everything she has to face. So it is likely that he will try to be at all medical appointments, school events and such like. This would very clearly signify that the "family unit" was not in itself mandated to take such decisions. As a reason for my view see: Letter to Dr M5

179) This would have an effect on D's overall sense of security. "

77. I should say that I have had some difficulty understanding how Dr Sturge's paragraph 174 fits with this assessment in that she says there that whilst accepting that Ms A and Ms C have very real feelings of threat in relation to Mr B's direct involvement in D's life, the reality of the threat is not as great as they think. Taking her report as a whole, what I think she means (and of course she said this at a time before Mr B had offered an agreement limiting the use of his parental responsibility) must be that Ms A and Ms C are right in thinking that Mr B is likely to try to be very involved but that they over-estimated the impact his actions would actually have upon their family. I note that Mr Weir, when asked about this paragraph in evidence, said that he did not think the threat was as real as the couple thought themselves because they had a very strong relationship and had survived a quite difficult few years plus, by then, it was known that Mr B was offering to accept a restricted form of parental responsibility.
78. Dr Sturge comments that Ms A and Ms C not only fear Mr B and his power if he were to be given parental responsibility but also if he were not (for example in forcing more contact and staying contact). They see him as wanting a 50:50 situation, in which Ms A and Ms C have 50% of D and Mr B has the other 50%. Dr Sturge comments that the way in which Mr B talks does tend to suggest that this is the case. Mr B spoke in 2001 to Mr Weir of "a level playing field" where the adults would all play equal roles. He said in evidence at this hearing that that was still his view of what should happen but in reality it cannot be because he is not wanted in that role. He would like "equality", not 50% because he recognises that D has a life with Ms A and Ms C and her sister. He commented that Ms C was always saying she was "number 2" and that was not right, she should be equally as important as Ms A in his view.
79. As I have commented already, I think Mr B is still struggling with the tension between what he wants as his role in D's life and the reality. I think that intellectually he accepts that he will be less equal than Ms A and Ms C and that this has to be the case if D's immediate family is to be secure, but emotionally he needs more. His judgment is not always wholly reliable in terms of his intervention in D's life. There were instances of this for which I criticised him in 2001. There have been other instances since, most notably the letter to Dr M5. I appreciate that it is some time since that was sent but there have been other matters since, set out in the history section of this judgment, which show that the danger of a recurrence has not disappeared. When similar problems recur over a protracted period as they have done here, albeit not frequently, it takes longer before one can be reassured that they are never going to happen again. Whatever decision is made now must therefore take into account that there may be times when Mr B's emotions get the better of him and he acts in a way which may adversely affect D's family's standing in society or its internal security and thereby may adversely affect D herself.
80. I thought Dr Sturge's observation about secrecy (set out in her paragraph 114 and in my paragraph 71 above) pertinent given the evidence over the school open day. It will be recalled that Ms A and Ms C were anxious about contact taking place that day in case D told Mr B where they had been to look at the school. It would be most undesirable if that sort of anxiety was allowed to become an influential feature either in their approach to D herself or to contact. She needs to be able to tell her father whatever she wants about her life. Mr B needs to ensure that he can be relied upon not to act irresponsibly with the information and Ms A and Ms C, for their part, must not seek to influence what D says to him. It seems to me that in the long run this should make matters less fraught between the parties rather than more; Mr B's conduct over medical matters shows that if he feels he is relatively fully informed, he is less likely to interfere or be difficult.
81. Dr Sturge also considers the impact that increasing Mr B's visibility would have on society's acceptance of the family as a complete family. She says:

"164) But will the issue of PR affect all this? Not directly but there will be a tendency for everyone D comes into contact with (or the family as a whole) to "look for the father". This could indeed by very undermining to her sense that she has a proper family acceptable as such to society at large. This could make her very insecure.

165) The more her father is in evidence, the less clear D will be about what constitutes her family and how viable the unit within which she lives is.

166) The more her father is around, the more likely that others will treat the "central" family as incomplete and seek to include the father e.g. in school decisions, medical treatment."

82. She also says:

"A third parent (and I use the word advisedly) will be confusing for D. Her sense of security will be strongest if she is clear that responsibility for her lies within her "nuclear" family."

83. Dr Sturge concludes in her report:

"182) What would solve this would be if the father could receive official recognition in some way but not be allowed to involve himself in the nitty gritty of D's life – the parenting couple having rights above his in his area as is, for example, seen in special guardianship."

84. She made no specific recommendation in writing. What she said in evidence was that her opinion was that the risks of Mr B having parental responsibility outweighed the benefits although it was "pretty finely balanced". The reason for this conclusion was that she could not see any direct benefits to D of parental responsibility but thought that the visibility it would give Mr B would be likely to cause tension.
85. This contrasted with the view of the guardian who agreed with most of Dr Sturge's report but for whom the balance came down on the other side in relation to the main decision. Mr Weir considered that the question of Mr B's intrusion into the family would arise whether or not he had parental responsibility. Mr B's actions were, in Mr Weir's view, at times very clumsy and ill advised to say the least (although not malicious) and Mr Weir did not really think parental responsibility would make things any worse. Mr Weir thought parental responsibility was much more about meeting Mr B's emotional needs to be recognised as D's father and parent than about being empowered to interfere in D's life. He even wondered if, on the contrary, it might enable Mr B to take a backward step because the recognition might meet some of his needs. Mr Weir had the advantage (which Dr Sturge did not have) of giving his evidence knowing that Mr B was offering to accept parental responsibility hedged about with constraints and took the view that he had recognised that he was not going to be part of D's everyday life. Even if Mr B were to attempt to interfere, Mr Weir was confident that the relationship of Ms A and Ms C would survive although he accepts that they are more vulnerable than the majority of families in that they are a same sex family.

My conclusions

86. There is no doubt that Mr B is committed to D and that there is an attachment between them, even though from D's point of view, the degree of it is moderated by the relative infrequenc y of her contact with Mr B. Mr B has a real importance in her life, both in practical terms through her contact with him and because of the simple and incontrovertible but less tangible fact that he is her father. It is imperative that they continue to have contact and that a positive relationship should be fostered between them, allowing her to know that he loves her unquestioningly and wants what is best for her and to understand and appreciate his role originally in her conception and now in her life. D will also benefit from getting to see another world through him and his extended family.
87. Mr B's motives for applying for a parental responsibility order are complex and I do not insult him by attempting to reduce their sophistication to a list for this judgment. I am quite satisfied that they do not include any trace of malice but have at their root his feelings for and about D and his wish to be recognised as belonging to her and to do all that he can towards securing her welfare. I do not consider that he sets out to be meddlesome although at times his lack of judgment causes difficulties with or for D's family.
88. There are, in the present situation, echoes of the situation with which I was presented in 2001 but it is material that the overall circumstances seem considerably clearer and more positive now than they did then. In 2001, Ms A and Ms C were against Mr B having any contact with D and feared his influence on the stability of their family and relationship, just as they now oppose parental responsibility being granted to him and fear the impact of that. It seems to me that in reaching my decision as to what should happen now, I can properly take into account how comparatively well things have in fact worked out in many ways between 2001 and the present, against what Ms A and Ms C would have said were the odds.
89. I confess that I have been anxious about whether making a parental responsibility order would be in D's interests for the sort of reasons that have influenced Dr Sturge, notably the potential threat to the stability of D's immediate family from what I may loosely call "interference" from Mr B as well as the impact on society's perception of the family if he were, in fact, to use it to become more visible in D's life. On the other hand, I am very mindful of the authorities which stress the status aspect of parental responsibility and those which indicate that it is not appropriate to refuse to grant it because of a feared misuse which should more properly be controlled by s 8 orders. I am also mindful of the fact that such matters as those for which I have criticised Mr B in relation to his actions towards D's family fall far short of the sort of activity that has, in the past, been seen as sufficient to found a refusal of parental responsibility. Perhaps most importantly of all, I am considerably influenced by the reality that Mr B is D's father. Whatever new designs human beings have for the structure of their families, that aspect of nature cannot be overcome. It is to be hoped that as society accepts alternative arrangements more readily, as it seems likely will happen over the next few years, the impulse to hide or to marginalise a child's father so as not to call attention to an anomalous family will decline, although accommodating the emotional consequences of untraditional fatherhood and motherhood and of the sort of de facto, non-biological parenthood that is experienced by a step-parent or same sex partner will inevitably remain discomfiting.
90. The dilemma facing me has been greatly eased by Mr B's offer to be bound by conditions which would prevent him from being intrusive in the obvious situations which might be anticipated as problem areas, namely D's schooling and health care. It has rightly been argued on behalf of Ms A and Ms C that it is not possible to anticipate all the situations that may arise and to guard against them but the course that Mr B proposes would cover the obvious ones. The court has power to regulate others, should they arise, through Children Act orders. Given that Mr B will know, following this judgment, the sort of context that the court anticipates there will be for his involvement in D's life, he will be able to forecast the likely consequences of attempts to become involved in areas of her life not covered by the proposed conditions and it is my judgment that that ought to be a brake upon his conduct.
91. Mr B's suggestion has allowed me to take a creative approach to parental responsibility in an attempt to make it serve the novel demands of a case such as this and to devise a solution which, I hope, goes some way towards what Dr Sturge outlined in her paragraph 182 (see my paragraph 83 above). I propose to grant him parental responsibility for D. The order will be considerably more detailed than normal and will recite that it is granted on the basis

i) that Mr B will not visit or contact D's school for any purpose without the prior written consent of Ms A or Ms C

ii) that Mr B will not contact any health professional involved in D's care without the prior written consent of Ms A or Ms C.

I considered whether it would be better to deal with these matters by way of the recital of what are in effect conditions or by way of an undertaking from Mr B. It seemed to me that it would better reflect the fundamental nature of these restrictions on Mr B's parental responsibility if the order set out that it was made in reliance upon them. It might also be said that this course recognises rather more clearly than an undertaking that if the conditions were not to be observed, the court might be invited to reconsider the whole question of parental responsibility. In contrast, the complication of a committal application, the natural sequel to the breach of an undertaking, would not be likely to assist in this case.

92. I would not like it to be thought by those reading the order that these restrictions have been forced on the parties by the court because that might be taken to suggest that there is a continuing active dispute between them or that Mr B has recently caused trouble with the medics or the school. I therefore propose that the conditions are preceded by a record that they are made pursuant to a proposal from Mr B. The precise drafting will be a matter for counsel. The quid pro quo will be that Ms A and Ms C will keep Mr B informed, as they have been doing, about the medical issues concerning D and will provide him with school reports. D should be brought up in a climate where she can indicate that she would like her father to attend a school event and I am sure that she will be. If this happens, I am confident that Ms A and Ms C will do the right thing by informing Mr B and inviting him to come along with them or attend separately. When such an invitation is issued, it would be sensible for it to be confirmed in writing.
93. As I said in my last judgment, D's home is with Ms A and Ms C. They, together with her sister, are her immediate family. That is where she will derive her primary security throughout her childhood. As Mr B expressly recognises, Ms A and Ms C are her day to day parents and he has no role in her day to day care, whether in relation to decision making or otherwise. He will, however, be kept informed of all major decisions taken by Ms A and Ms C in relation to her. He will thus be recognised as a parent by the grant of parental responsibility but it will be a parent of a very different sort – no less important, just very different. It would be helpful, in my view, if a form of words could be included in the order as part of the pre-amble reflecting this paramount position of the family comprising the two mothers and the two children. Once again, the precise drafting is a matter for counsel but I hope that in this way, Ms A and Ms C could be reassured that their prime role – their status - has been fully recognised by the court and that it would be recognised by anyone who has cause to see the order.
94. By means of this more than usually detailed parental responsibility order, I hope that the respective statuses of the parties can be properly recognised and D's welfare best served. Very importantly, it will be possible in this way to cater for one of the matters that particularly concerned me about the prospect of refusing parental responsibility. Had I done that, Mr B's consent would not have been necessary in any adoption proceedings brought by Ms A and Ms C. For a father who has shown commitment to his child and has been as involved with her life as Mr B has to be relegated in adoption proceedings to the position of a father without parental responsibility would not, in my judgment, be appropriate, even though I am quite confident that Mr B would have been served with the adoption proceedings and given a full voice. Proposals were made on behalf of Ms A and Ms C to deal with this, such as a consensual grant of parental responsibility if adoption proceedings were commenced, but it was clear that in the event that the adoption was refused, Ms A and Ms C would have intended to apply for the parental responsibility to be revoked again and this sort of tactical manoeuvring of status did not seem to me to be in anyone's interests.
95. As far as the issues over contact are concerned, it is inevitable that everyone will have to continue to move cautiously forward, seeing what works for D at any particular time. I am not inclined to stipulate that the revised arrangements agreed between the parties should endure only for a finite period and then be reviewed with a view to increasing the time D spends with her father. I hope the boundaries of her family are more clearly defined and understood following this hearing and I know that Mr B now recognises that he is not working towards the sort of role in her life that an absent father may have after divorce. She may want to go and stay with him overnight in the future or to have markedly more time with him without overnight stays; no doubt the more secure she feels in her primary family, the more likely that is. It would, however, be quite wrong for the court to send out the message that there are any presumptions about developments such as this.
96. As to the question of Mr B's extended family participating in contact with D, I consider that it would be in her interests for her to meet other relatives from time to time. She already sees Mr B's wife and apparently gets on with her. Mr B said it will not be possible for other relatives to come very often, no doubt for logistical reasons. He would tell Ms A and Ms C in advance if someone extra is coming. This seems entirely reasonable and I am sure Mr B will not introduce other relatives too frequently so that D gets too little time with him on his own. If that position were to be reached, or if she unexpectedly took a dislike to someone, I would expect Ms A or Ms C to raise it with Mr B and Mr B to make any reasonable changes in response.
97. Before I part from this case, I want to record my gratitude for the exceptionally sensitive and expert contribution made by advocates.

21 December 2005