England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/06/2011

Mr Justice Peter Jackson:

1. These proceedings concern a boy who was born on 31 October 2006, and is now aged 4½. I will call him George. He lives with his mother, Mrs R, who is aged 29, and his 15-year-old half sister J. The mother and J are Thai nationals who have lived in this country since 2005/6, and George was born here.
2. The events leading to the proceedings arise in large part from deceptions carried out by the mother towards two men. The first is her husband, Mr R, who is a British citizen aged 70. The second is the biological father of George, Mr S, a Swedish citizen aged 54. In brief, having married and achieved economic security with Mr R, the mother renewed an association with Mr S as a result of which she became pregnant. Before George's birth, she set out to persuade both men that Mr R was the child's father, and for the first 2¾ years of George's life, he was brought up as if this was the case. At that point, the mother left, taking the two children, and Mr R's part in George's life has been very limited ever since. In the meantime, the mother's relationship with Mr S has been rekindled, and they now apparently intend to marry once the mother is free to do so.
3. This situation throws up a number of inescapable issues about George's identity and welfare and the status of the two men. In approaching those issues, I am bound to make George's welfare my paramount concern. I also bear in mind the rights of the adults under Article 8 ECHR for respect for their family life, although these must take second place where they conflict with George's welfare.
4. Mr R has undoubtedly been placed in a poignant predicament. Having created a new family relatively late in life, and having treated George as his child and become very attached to him, he has been left bereft. However, the court can only be guided by what is best for George, however great its sympathy for Mr R's position.
5. The applications made by the parties are these:

(1) An application by the mother for a declaration of parentage, naming Mr S as George's father, with the consequence that George's birth certificate would be amended.

(2) An application by Mr R for a parental responsibility order.

(3) Cross-applications for residence and contact.

(4) An application by the mother for permission to remove George permanently from the jurisdiction to Thailand, which she seeks the leave of the court to withdraw and possibly then amend to an application to remove him to Sweden.

(5) An application by the mother for the discharge of a prohibited steps order preventing her from removing George from the country and an undertaking preventing her from applying for a passport for him

6. Another outstanding issue relates to the divorce proceedings, as to which I shall give agreed directions.
7. I now set out the history of events and the procedural history.
8. Mr R is a retired laboratory scientific officer. He was married between 1964 and 1972 and has two daughters and four grandchildren, none of whom he has any significant contact with. He has for 30 years lived in a detached house in Chislehurst. In 2000 he went on a Saga holiday to Thailand, fell in love with the country, and returned. In 2002, he met and began a relationship with the mother, who was then 19 or 20 years old. At the age of 14, she had given birth to J, who was only six years old when Mr R came on the scene. J was being looked after elsewhere in the country by the mother's own mother. It is clear that the mother was living in relatively impoverished circumstances, and that her contacts with relatively well-off Europeans were of importance to her.
9. Over the next two or three years Mr R spent a lot of time in Thailand with the mother and on 19 January 2005 they were married there. At around the same time, Mr R bought a house in Thailand, which he put into the mother's name. He explains that he did this to provide her with security in the event of his death, raising the capital by taking a mortgage on his own home for which he continues to make substantial repayments. After the marriage, Mr R returned to England to make preparations for the mother's arrival.
10. Shortly before the mother met Mr R, she had met and associated with Mr S, who is an executive with a leading Swedish company. That relationship had subsided, but it seems to have begun again after Mr R left for England, and Mr S and the mother kept in touch with each other thereafter. The mother did not tell Mr S that she was married.
11. In April 2005, the mother came to England to live in Mr R's home. However, in January 2006, she met and had sexual intercourse with Mr S and she became pregnant with George. When she was three months pregnant, she informed Mr S of her marriage, but said that he was not the father, something that he was unwilling to accept. When she was six months pregnant, she also told Mr R of the possibility, which she put at 5%, that he might not be the father, thereby disclosing the existence of another man. She expected Mr R to end their relationship, but he did not do so. He suggested that a DNA test be taken before the birth of the baby, but this was regarded as risky and was not pursued. In July 2006, J came over from Thailand to join the family, and George was born in October 2006.
12. The mother appears at that time to have taken the decision to turn her back on Mr S and throw in her lot with Mr R, who she says she still loved. She refused to communicate with Mr S, who responded by sending an e-mail to Mr R in January 2007 identifying himself. Nevertheless, the mother and Mr R continued to bring up the two children together until the middle of 2009. The mother learned some English. She communicated with Mr R in English and with the children in Thai and English.
13. The reasons why the relationship between the mother and Mr R broke down are not of central importance to the issues that have to be decided, but I make these limited observations. It is undoubtedly the case that the mother's infidelity created a huge fault line through the relationship, cracking the foundations that Mr R had created. It is also clear that she is capable of being untruthful when she considers it necessary. On the other hand, I accept that she felt extremely guilty about her behaviour, and I find it difficult to see her, as Mr R understandably does, as a calculating schemer. She has been dependent on the goodwill of two older and much more experienced men and, in trying to make the most of her relatively disadvantaged position, has created a situation that neither of them has found comfortable. In the brief evidence that she gave, she struck me as a gentle person who is genuinely sorry for what has happened.
14. For his part, Mr R was undoubtedly committed to the marriage, and remains committed to George, but there are signs that support the mother's account of him as not always being easy to live with. Even taking account of the indignation that he understandably feels at the mother's conduct, he comes across as someone who does not always find it easy to listen to other points of view. In answer to a direct question from him, the mother described him as a good and bad husband, the bad being that he would not let her express herself. She also rightly complains about incidents concerning J, the details of which are not in issue. The first took place when George was a small baby. Apparently J, who was only aged 11 or so, put him down on the table. The father considered this dangerous and slapped J on the face. By September 2008, J's school was expressing concern that she seemed unhappy and withdrawn. She complained that Mr R was hitting her, and the mother said that he was domineering and critical and undermining of their Thai culture.
15. The last incident took place on 28 July 2009. Mr R was driving with J in the back of the car. It seems that she was being difficult and a row broke out in which Mr R became concerned that she might cause a crash by grabbing the steering wheel, and slapped her in the face with the back of his hand.
16. This incident appears to have been the catalyst for the separation. On 3 August 2009, while the father was out, the mother left the family home with the children and went to a refuge. Her departure was assisted by a local authority social worker. Neither she nor the children have returned since, except for a brief visit a few days later when the mother returned to collect some belongings. The mother and Mr R's next conversation took place on the first day of this hearing, when he cross-examined her through an interpreter. There has been no contact between Mr R and J. After a gap of six months without any contact between Mr R and George, there has since February 2010 been fortnightly contact for two hours at a contact centre.
17. I should make clear that I do not regard the incidents involving J, regrettable though they were, as being of significance when considering what is in George's best interests. In particular, I do not consider that Mr R represents any risk of harm to George. The observations that I have made about the parents are instead intended to give a balanced view of the reasons for the failure of the relationship. In particular, I am satisfied that it would be a misunderstanding to view the fault as lying on one side only.
18. Following the mother's departure, the father, who was then legally represented, immediately applied to the County Court for orders seeking disclosure of the whereabouts of George and preventing his removal from the jurisdiction, and such orders were made in August 2009. In October 2009 the mother undertook not to apply for a passport for George, Mr R was given permission to amend his application to include an application for contact, and a CAFCASS report was ordered on the question of prohibited steps, contact and residence. Contact was ordered to take place for two hours on alternate weeks at a contact centre as soon as possible, with Mr R to make the necessary arrangements. In the same month, he applied for a residence order.
19. Within the apparent encouragement of the refuge, the mother and Mr S arranged for a DNA test to be carried out. This was done without the knowledge of the court or of Mr R. The test report, dated 21 January 2010, convincingly establishes that Mr S is the biological father of George. The manner in which Mr R was informed is regrettable. The report was handed to him at court on 2 March 2010.
20. On 25 March 2010, the mother made various applications, notably an application for permission to remove George to live in Thailand. On 13 April 2010, the County Court transferred the matter to the High Court, apparently in the mistaken belief that a relocation application could not be decided in the County Court. An application by Mr R for increased contact was refused.
21. In the meantime, on 7 April 2010, the CAFCASS report had been filed. It was prepared by a social work student under supervision. It recommended that residence should remain with the mother and that the contact with Mr R should continue unchanged, but be reviewed in the light of the outcome of the mother's application to move to Thailand.
22. The matter came before this Court in June 2010, when the restriction on the mother obtaining a passport or travel documents for George was continued. A further CAFCASS report was ordered on the question of whether George should be joined as a party, and DNA tests were directed in relation to the mother, George, J, Mr R and Mr S. The matter was set down for hearing. It ultimately came before me for directions on 17 March 2011, when this hearing was fixed and directions given for service on Mr S of the proceedings in relation to parentage. A single issue CAFCASS report assessing the relationship between George and Mr R was also directed.
23. That report, dated 16 May 2011, was prepared by Mrs O. She was the supervisor of the author of the previous report. She observed two occasions of contact, one in March and one in April. On both occasions, she felt that the interaction between George and Mr R was very positive and that George appeared very relaxed and comfortable. He enjoyed Mr R's company, and Mr R was patient and child focused. He referred to Mr R as "daddy" but also referred to Mr S in that way. Mrs O felt that George was happy with the routine and that there had been a clear progression in terms of quality of contact compared to a year ago. This was corroborated by the staff of the contact centre, whose only concern was that Mr R tended to ask George a lot of questions about his life at home. The recommendation of the report is that there are no concerns about Mr R's ability to meet George's basic care needs and that it would be appropriate for there be contact outside the contact centre. Any extension to staying contact could not be recommended until the outcome of the relocation application is known.
24. The mother's solicitors duly informed Mr S of the applications. On 17 March 2011 he wrote, agreeing with the DNA test results and agreeing to be registered on George's birth certificate as his father. He says that he has had regular contact with George since October 2009, during which time he had visited England eight times for between five days and two weeks. He talks to George regularly over the phone or on Skype. He wrote "I plan to have contact with George and support him if Ms R moves to Thailand. My hope is that we can provide a solution where I can be present in his life and his upbringing."
25. According to the mother, around Easter 2011 she accepted a proposal of marriage from Mr S and is now contemplating moving with the children to Sweden. Mr R was informed of this by solicitor's letter of 3 June 2011. On the 8 June 2011, Mr S wrote to the court saying that he is "fully committed to assume full responsibility of parenthood for George together with Ms R. We are planning to get married as soon as it is legally possible and to settle in Sweden..." He has provided a short statement setting out the practical aspects of life for the children in Sweden.
26. This hearing has taken place over two days, with the mother being represented by counsel and Mr R representing himself. I heard evidence from Mrs O, the mother and Mr R.
27. Mrs O maintained the recommendations in her report. She saw no basis for a change of residence. It would be very difficult for George, who has been cared for by his mother all his life and in her sole care for half his life. As to contact, she saw it as quite a complex question. It is now regular, consistent and going well. It would be in George's best interests to allow it to take place outside the contact centre with broader activities. She recommended moving forward with some caution given the uncertainties about the future. She would recommend maintaining the current frequency but extending the periods to 3 hours to start with, and then to a possible five hours. She would not be troubled by the absence of a third party, and could see some advantages in contact taking place at Mr R's home. She did not support staying contact while the situation remains uncertain. George was brought up with Mr R as his father. There is a close relationship and he offers continuity. She believes that George sees himself as having two daddies, which is not unusual. He will face a period of adjustment. Contact should continue even if Mr R is not granted parental responsibility. Its purpose is to maintain Mr R as a father figure or a significant person. Maybe as matters progress, Mr R will become less of a father figure but still be important to George. George will decide what he makes of it. Mrs O said "the main thing is there is some form of attachment".
28. The mother gave evidence through an interpreter. Mr R was somewhat indignant about this, pointing to evident ability on the part of the mother to speak and write in English. It was nevertheless not unreasonable for her to want to give evidence in her first language in relation to such important matters. In essence, she said that she felt guilty about her behaviour and apologised to Mr R. She was prepared to keep him informed about George's progress, even though this had not happened since the separation, but she did not feel happy about him having parental responsibility. George has been at nursery for a year and a half and would start school in September. They have been in their current address for about a year. She largely accepted the contact proposals made by Mrs O, although she would prefer a three-hour period and asks for any change to be phased in quite slowly. As to a move abroad, she has never been to Sweden and would like to go there in August to reconnoitre, leaving George in the care of a friend. She said that Mr S is a divorced man and that she has told him everything about her situation and that of her children.
29. Mr R gave evidence, in addition to providing information during the course of his representation of himself. He accepts that Mr S is George's father, but is very concerned about his own name disappearing from George's birth certificate. He does not like the idea of George losing his legitimacy. He would like to have parental responsibility in order to have the right to have a say in all important decisions about George's upbringing, but if the court only ordered that he should have information, he would have to accept it. So that documents did not have to be edited, he would be willing to agree not to go to the mother's address or to George's school if he is provided with that information. He points out that he has not had any information thus far. For him, the issue of residence is the most important one. He points to his own stability, the suitability of his home and the availability of good local schools. Because he is not going anywhere, he is able to offer a predictable future for George. He can look after George full-time with no other distractions. He is in good health and has made contingency plans for care by a nephew, his sister's son. He would support contact with George's mother. He is very concerned about the prospect of George leaving this country, and the effect on him and on J of moving to Sweden where they do not know the language. He described the situation that would exist if George was allowed to leave as "a black hole" where no further control could be exercised by this court. He regards the mother's future plans with Mr S with great suspicion. He is also concerned about George's mind being poisoned against him by the mother. In relation to contact, he did not speak strongly against Mrs O's recommendation, but would like some staying contact, for example when the mother goes to Sweden in August. He is amenable to agreeing a way in which he and the mother can now be divorced.
30. I now turn to the issues.

Parentage

31. It has been conclusively established that Mr S is the biological father of George. By s.55A Family Law Act 1986, a person may apply to the court for a declaration of parentage. The court may refuse to hear the application if it considers that its determination would not be in the best interests of the child.
32. In the circumstances of this case, I shall upon completion of the necessary formalities make a declaration that Mr S is the father of George. I do not consider that determining the application would not be in George's best interests. On the contrary, regardless of the rights and wrongs of what has happened in the past, it is in George's interests that his biological parentage is made clear. The declaration will be notified by the court to the Registrar General for consideration of an amendment to the register of births.
33. I shall direct that the solicitors for the mother shall within seven days, namely by 22 June 2011, lodge a complete application in the form prescribed under the new rules accompanied by a copy of George's birth certificate and at the same time send a copy to Mr R, Mr S and to my clerk. No other service is required. I have at a previous hearing dispensed with the requirement for George to be represented by a Guardian.

Parental responsibility

34. This is an issue of real importance. By virtue of Children Act 1989 s.2(1), Mr R appeared to have parental responsibility for George as being his father and being married to the mother at the time of his birth. Subsequent evidence has demonstrated that he is not George's father, and that he consequently does not have parental responsibility for him

.

35. The only means available to Mr R to obtain parental responsibility is by virtue of Children Act 1989 s.4A(1)(b), which provides that the court may grant parental responsibility to a person who is not the child's parent but who is married to the child's parent. The purpose of this procedure to obtain what is commonly known as a "step-parent parental responsibility order" is described in the Explanatory Notes to the Adoption and Children Act 2002, which read:

Section 112 inserts section 4A into the Children Act 1989 to enable a step-parent to acquire parental responsibility for a child of his spouse. This may be acquired either by agreement between the step-parent and the parents who have parental responsibility for the child, or by order of the court. This measure is intended to provide an alternative to adoption where a step-parent wishes to acquire parental responsibility for his or her step-child. It has the advantage of not removing parental responsibility from the other birth parent and does not legally separate the child from membership of the family of the other birth parent.

36. It can therefore be seen that in normal circumstances the beneficiary of such an order will be a person who might be described as an incoming step-parent who wish to bring up a child together with the parent with parental responsibility and will be centrally participating in the upbringing of the child in future
37. On behalf of the mother, Mr Bartlet-Jones accepts that the court's power to grant parental responsibility is not limited to such paradigm circumstances. However, he argues that the other situations in which an order might be made are likely to be limited. I agree. One can foresee a situation in which an order might be made following separation in favour of the parent of a much older child, who turns out at a late stage not to be the biological parent, but who will continue with the child's approval to carry on a full parental role. What is important is what is in the child's best interests for the future.
38. In Re G (Children) [2006] 1 WLR 2305, at 2316-2317, Baroness Hale refers to the 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. She refers to genetic, gestational and social/psychological parenthood, and with regard to the third says this: "But there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and do have an important contribution to make to their welfare."
39. Turning to George's situation, Mr R was undoubtedly his psychological parent until the age of 2¾, and has continued to fulfil that role, though in a much diminished way through no fault of his own. He has limitless commitment to George and a strong desire to play as great a part as possible in his life, not excluding removing him from the care of his mother. However, he is not George's biological father and I do not consider that it is in George's true interests to invest (or reinvest) Mr R with parental responsibility. It would place him at the heart of all future important decisions about George in a way that is in my view likely to lead to conflict with the mother. I do not foresee Mr R playing such an important role in George's future development that it would be beneficial to George for him to have equal status with the mother. I do not see this as a case in which the power under s.4A should be exercised for a purpose that was probably not intended. It is only by chance that the power exists at all. It would not do so if Mr and Mrs R were already divorced, as well they might have been.
40. I shall therefore dismiss the application by Mr R for a parental responsibility order.
41. It is nevertheless in George's interests for Mr R to remain informed about his progress. I shall make a specific issue order requiring the mother to provide Mr R with regular information about George's health and schooling, and any other significant information concerning his welfare. This will include a report from George's nursery, and a general practitioner report on his general physical health and development, in each case within the next month, and, in future, school reports as soon they become available.

Residence

42. I understand Mr R's anxiety about George's future. However, as the decision in Re G also makes clear, he faces an uphill task in persuading the court to remove George from his mother. I have come upon no good reason why this should happen. George would be bewildered to be removed not only from his mother but also from J. I shall make a residence order in favour of the mother.
43. I shall accept the mother's undertaking that George continues to be known as George R unless a change of name is permitted by the court.
44. I shall also continue the prohibited steps order preventing the removal of George from the jurisdiction, and continue the mother's undertaking not to seek to obtain a passport or travel documents for him, in each case until further order of the court.
45. The reason why these additional provisions are appropriate is that the mother's plans for the future are so uncertain. The suggestion that she and Mr S are to marry and settle down together was only disclosed this month, and I am concerned to ensure that no radical change takes place in George's settled existence without proper planning and endorsement by the court.

Contact

46. I accept the sensible advice of Mrs O. I will direct that contact continue on alternate Saturdays, the next being 24 June, and that the W Centre shall be the venue for George to be dropped off and collected by the mother. The next two occasions of contact shall last for three hours, with the first hour and the last half-hour being spent within the Centre. The next four occasions of contact shall last for three hours, all to be spent outside the centre if Mr R wishes. Thereafter, contact shall last for five hours, all to be spent outside the centre and to include short visits to Mr R's home, if he wishes.
47. I do not consider that this programme will be destabilising for George, or involve anything that Mr R cannot cope with.
48. I shall not make any order for staying contact, including during the period when the mother plans to go to Sweden in August. I quite understand Mr R's feeling about this, which includes concerns about the proposed carer during the mother's absence, but I do not think that it is in George's interests to embark upon staying contact at such a time of uncertainty. That question is better considered when the mother's proposals are known.

Relocation

49. Between March 2010 and the beginning of this month, the mother was pursuing an application to return with the children to Thailand. Although it was a poorly prepared application, it undoubtedly caused great anxiety to Mr R. Now, the whole situation has changed again. The mother may wish to seek permission to move to Sweden. If so, she will have to present a coherent application. Because there will be a contact order in force, it will be appropriate for Mr R to remain a respondent to that application, even though he will not have parental responsibility. I make no assumptions about what the outcome of that application will be. It is an application which need not be heard in the High Court.
50. I shall give the mother permission to withdraw her application to remove George from the jurisdiction in so far as it relates to a move to Thailand. I shall direct that if the mother seeks to pursue her application in so far as it relates to a move to Sweden, she shall lodge an amended form of application no later than 7 November 2011 in the County Court. When making the application, she shall set out in outline the proposals that the mother is making for George's accommodation, education and healthcare, and the role that Mr S will play, and her proposals for contact between George and Mr R. I invite that court to consider requesting CAFCASS to allocate any further work on the case to Mrs O, who is respected by the parties and has a good understanding of George's situation.
51. If the mother does not apply to amend her application for permission to remove George from the jurisdiction by 7 November 2011, it shall stand dismissed at that date.
52. If the application does proceed, I am sure that that court will bear in mind the need for an early decision in the light of George's age and the length of time since these proceedings originally began.
53. Whether or not the application proceeds, it remains open to the parties as a last resort in the absence of agreement to apply to the County Court in relation to all the matters covered by the present order.

The divorce proceedings

54. Happily, agreement has been reached. Mr R will issue a petition no later than 6 July, citing the mother's adultery but making no claim for costs.
55. Upon being served with this petition, the mother shall return an acknowledgement of service indicating that the petition is not defended and at the same time she will apply to withdraw her own behaviour petition without seeking any order for costs.
56. By these means, a decree nisi can be obtained without delay and any financial issues can thereafter be resolved by agreement or by decision of the court.

Confidentiality

57. At the moment, Mr R has very little information about George's daily life. He does not know where he lives or where he goes to nursery. The mother agrees that she will inform Mr R of the addresses of George's nursery and school and general practitioner, upon Mr R providing a signed undertaking that he will not attend or contact them. This will be recorded in the order, and the mother's solicitor will supply a form of undertaking for Mr R to sign.
58. The mother's address will remain confidential for the moment because Mr R prefers not to know it, fearing that he will be accused of going there. The mother agrees that at the point when her solicitors cease to act for her, they shall ask Mr R if he wishes to know her address and that if he does he shall be provided with it upon signing an undertaking that he will not attend the address. Again the form of undertaking will be supplied by the mother's solicitor.
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