England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2024

This judgment was handed down remotely at 2pm on 31^st July 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

MR JUSTICE HAYDEN:

1. I am concerned with welfare issues, following on from Hague Convention proceedings, in respect of two half-siblings, D, aged fourteen years of age and K, aged ten years. The Applicant (A) is a New Zealand national, living in New Zealand. A is represented by leading and junior counsel, Mr Hames KC and Mr Marnham. With the encouragement and cooperation of D's mother, A sought and obtained a Guardianship Order relating to D on 7^th November 2018. The First Respondent (M) is the children's mother, a British national of Tanzanian heritage, also presently living in New Zealand. M is represented by leading and junior, Mr Jarman KC and Mr Basi. Both A and M have attended the hearing on video conferencing platform. For completeness, the second respondent (S) is the maternal aunt, represented by Mr Gupta KC and Ms Kumar. The third respondent is D's father (N), represented by Ms Mellor. The fourth respondent is K's father (T), represented by Mr Shama and Ms Halliday. D and K, through their children's guardian Ms Demery, are represented by Ms Giz. The proceedings, pursuant to Article 21 of the 1980 Hague Convention, now concern the single but important issue of A's application for a Parental Responsibility Order in respect of both children.
2. A and M were involved in contested private law proceedings in New Zealand. The New Zealand court had made orders providing for the children to live with the applicant for fractionally more than half of each week. In her resolve to defeat the order, M booked flights for both children to fly to the United Kingdom, as unaccompanied minors, to live with her sister (the second respondent). D had not seen his aunt, at all, for approximately eight years. He would have been six years of age when he last saw her. K had not seen her aunt since she was a young child. There appears to have been a plan that K would be introduced in person to her biological father in the UK. These arrangements, which involved these two young children travelling for nearly 30 hours halfway across the world, were not communicated to D until the day of travel and not communicated to K until she was at the airport. Neither child had any real chance to make arrangements, prepare themselves or say goodbye to anybody. It is a tribute to the aunt's care and their resilience that they appear to be coping well at present. K has been introduced to T and that, still fledging, relationship appears to be progressing positively. There can be no dispute that this was an unlawful removal, in breach of the rights of custody vested in the applicant and in the New Zealand court. It requires to be said that it must have been an extremely frightening experience for these children.
3. Following a period of what was obviously anxious reflection, A sought permission to withdraw the 1980 Hague proceedings. Mr Todd KC, sitting as a Deputy High Court Judge, granted that permission. For the reasons set out in his judgment, handed down on 19^th March 2024, the Judge declined to recognise the applicant's parental responsibility in respect of both children. He did, however, give directions as to the extent and manner in which the children should spend time with A. That decision was subject to an appeal, but the appeal has been adjourned generally, pending the outcome of this application.

Background

4. The background is complex and reveals M to have experienced a period when her personal life was somewhat chaotic. I have endeavoured to pare the detail down only to those facts which are necessary to understand the issues before me.
5. Before she met the applicant, M and N began a relationship, in August 2008. D was born in February 2010. I note that M has made allegations of domestic abuse against N which are denied and have never been adjudicated. It is a matter of record that in June 2010, the police were called to the couple's home. M was alleging that N was trying to take D from her and had grabbed her round the throat. No further police action was taken. The following month, N contacted the local authority, the London Borough of Ealing, and asserted that M was neglecting D (who was 6 months of age). The couple's relationship finally broke down completely in around November 2010. N left the home, leaving D with his mother. There was a dispute between the parents relating to N's contact, which resulted in him issuing private law proceedings in the Brentford County Court on 28^th February 2012.
6. In the summer of 2013, M began a new relationship with T. The couple were together for approximately 8 months, during which time M became pregnant. In August 2013, D was made subject to a child in need plan, following a report from a concerned member of the public, that D had been hanging out of a first-floor window. When the police attended, they noticed a number of health and safety issues relating to M's home. The baby (K) was born in June 2014. On my reading of the chronology of the case, the parents had already separated by that time.
7. On 10^th February 2014, DJ Jenkins made a final order in the private law proceedings. The District Judge granted N contact to his son, on alternate weekends from Friday to Sunday and on Tuesday evenings in the intervening week. On 14^th May 2014, D was made subject to a child protection plan. On 5^th June 2014, K was born. It is an agreed fact that T took no responsibility for or any interest in his daughter. He blocked M on his phone and did not respond to her attempts to contact him, made to his mother.
8. M met the applicant in these proceedings on an online gaming platform and they became friends. A was living in New Zealand and M was living in London. Though they had not met physically, the couple developed a relationship. A travelled to England to spend time with M for a few weeks in summer of 2016. In November 2016, M moved to live with the applicant in New Zealand, taking both children with her. It is an agreed fact that D's father was not informed of this relocation. K's father was not informed either but, I note, he had chosen to play no part in K's life. Indeed, as I understand it, he had never seen her.
9. Her relationship with A appears to have led to a greater period of stability for M than she had been able to achieve before. On the 10^th March 2017, A and M were married in New Zealand. The following year, they had a daughter together (Y), born on 24^th April 2018. In November 2018, A and M made a joint application to the Waitakere Family Court, New Zealand. They were plainly hoping to construct a legal framework around themselves, reinforcing them as a family unit. The application was to secure the appointment of A as an additional guardian for D. During the proceedings, D's wishes and feelings were solicited. He was, by that stage, 8 years of age. It seems that D too had blossomed in this more stable environment. He was plainly doing well at school, happy and engaged in his life. He expressed an unequivocal wish to remain living with his mother, stepfather and sisters in New Zealand. The New Zealand court made, predictably, extensive efforts to encourage D's father to engage with the process. No response was forthcoming. In the course of the litigation, M signed a letter, dated 18^th March 2018, stating that A was "the only father [K] had ever known". This is not only accurate but it requires to be emphasised. For the first nine years of her life, and she is still only ten, K has known only A as her father. He has been fully committed to her and a father in every sense other than the simply biological. Judge VR Kidwell, sitting in the Waitakere Family Court, granted the application and appointed A as a Guardian for D. No application was made in relation to K, as I understand it, because she had no idea that A was not her biological father. In A's statement, he tells me that he had tried to persuade M to tell K the truth of her origins but M did not want to do so.
10. Sadly, in 2022, storm clouds settled over the couple's relationship. M's behaviour is said by A to have become increasingly erratic. It resonates with some of her behaviours in her earlier relationships. M was plainly struggling to get the children to school on time or indeed at all. She was also charged with an offence of assault against D. These allegations went to trial, in the criminal court, M was acquitted. A contends that M went to Canada, leaving all 3 children with him for a period of approximately two weeks in the summer of 2022. As I understand it, M disputes this. In any event, in August 2022, it is clear that the relationship between A and M had irretrievably broken down albeit that they continued to live together in the family home for a short period. On 15^th August 2023, M left the family home, taking all three children to live with her in refuge accommodation in central Auckland.
11. A filed applications to the Northshore Family Court on 16^th August 2023, seeking to restrain Y from being removed from the jurisdiction of New Zealand. On 6^th September 2023, the application was amended to seek care of all three children. On 12^th September 2023, Judge Maude delivered an interim judgment in which he recorded being told by the children's lawyer that S and K both missed "their dad". D seemed to be most concerned about missing school. He "wasn't so sure" about missing A. I sense that D's carefully poised answer reflected an unwillingness to be perceived as taking sides. There can be no doubt about A's role in K's life. Judge Maude's approved judgment makes it pellucidly clear that K sees A as her "dad". The Judge made an interim shared care order, dividing the children's week between M and A. Within a month of the Judge making the order, the children were removed in the circumstances that I have described.
12. A has, in my judgement, kept his focus on the welfare of the children. As I have said, he recognises the quality of care that is being given to them by the maternal aunt. What he seeks to achieve is easy, natural video and telephone contact between Y and her siblings as she still continues to see them. He also remains entirely committed to K and D. By his application for parental responsibility, he asks the court formally to legalise that which exists in reality.

Legal Framework

13. The applicable law is settled but requires to be stated. The application is made pursuant to section 4A(1)(b) of the Children Act 1989:

4A Acquisition of parental responsibility by step-parent.

"(1) Where a child's parent ("parent A") who has parental responsibility for the child is married to, or a civil partner of, a person who is not the child's parent ("the step-parent")—

(a) parent A or, if the other parent of the child also has parental responsibility for the child, both parents may by agreement with the step-parent provide for the step-parent to have parental responsibility for the child; or

(b) the court may, on the application of the step-parent, order that the step-parent shall have parental responsibility for the child.

14. Applications for a Parental Responsibility Order are determined in accordance with the paramountcy principle at section 1(1) of the Children Act 1989. The Court of Appeal in Re H (Parental Responsibility) [1998] 1 FLR 855, at para. 94 identified the following three factors to consider, emphasising that they are a "starting point and non-exhaustive":

i. The degree of commitment the applicant has shown towards the child;

ii. The degree of attachment to the child;

iii. The reasons for their application.

15. Whilst the parties have focused on the above factors, the following analysis of Butler-Sloss LJ is also important:

"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".

16. Mostly, orders made pursuant to Section 8, Part II of the Children Act 1989 relate directly to the welfare of the subject children e.g., contact, residence etc. By contrast, Parental Responsibility orders focus primarily but not exclusively on the rights and legal status of the adult. The Children Act 1989 replaced the concept of parental rights with one of parental responsibility. Section 3(1) of the Act states that "parental responsibility" means "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". Clearly, the defining features of the order focus on parental rights. Butler-Sloss LJ analysed the scheme of these provisions thus:

"The structure of this Part of the Act is to give automatic parental responsibility to the mother and to the father married to the mother at the time of the birth of the child (s 2). If the parents are not married, the father may acquire it by a formal agreement with the mother (s 4(1)(b)) or, on the application of the father to the court, an order may be made (s 4(1)(a)). There are no criteria set out in the Act for the granting of parental responsibility but in Re G (A Minor) (Parental Responsibility Order) [1994] 1 FLR 504 Balcombe LJ applied the principles set out in his judgment in Re H (above) to a parental responsibility application made under the Children Act. In a series of decisions of this court and of the High Court the principles set out in those judgments have been followed.

17. The 'responsibilities' identified by the Children Act signal that the concomitant rights conferred by Section 3 are to be constructed as duties and responsibilities owed primarily to the child. It is for this reason that the provisions are to be determined under the guiding principle of the Act, the paramountcy principle.
18. In Re H-B (Children: Contact) [2015] EWCA Civ 389, Munby P expressed an expansive view of the scope and nature of parental responsibility, identifying it as "outside and anterior to the law", at [72]:

"Parental responsibility is more, much more, than a mere lawyer's concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child".

19. In Re H (a Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664, King LJ emphasised that where more than one person holds parental responsibility, each of them may act alone without the other, no one party having dominance or priority. Indeed, as was noted, the day-to-day realities of life mean that each parent frequently acts alone. This is the case even when the parents live together but inevitably greatly amplified when they are separated.

"[94] Regardless of whether immunisations should or should not continue to require court adjudication where there is a dispute between holders of parental responsibility, there is in my judgment a fundamental difference as between a private law case and a case concerning a child in care. In private law, by s.2(7) CA 1989, where more than one person has parental responsibility, each of them may act alone and without the other. Section 2(7) does not however give one party dominance or priority over the other in the exercise of parental responsibility. Each parent has equal parental responsibility, even though the day to day realities of life mean that each frequently acts alone. This applies particularly where the parties live in separate households and one parent is the primary carer. As Theis J put it in F v F at paragraph [21], "in most circumstances [the way parental responsibility is exercised] is negotiated between the parents and their decision put into effect."  As neither parent has primacy over the other, the parties have no option but to come to court to seek a resolution when they cannot agree"

20. Mr Hames KC and Mr Marnham have taken me to the judgment of Baroness Hale in Re G [2006] UKHL 43, where she reviews the nature of parenthood, recognising how it has changed over the years:

"… the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase "psychological parent" gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus: 'A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent."

21. Baroness Hale goes on to note at [37]:

"…there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare. Adoptive parents are the most obvious example, but there are many others…."

22. Finally, it is also helpful to consider Re B (No. 2) (a Child) (Welfare: Child Arrangements Order, Inherent Jurisdiction) [2017] EWHC 488 (Fam). There, Russell J identified the importance of the Parental Responsibility Order as a significant marker of the parental role the applicant played in the child's life:

"[45] As the court has made a CAO for contact between B and the applicant the court can make a parental responsibility order in favour of the applicant under s12(2A) (a) & (b) CA 1989. In making such an order I have applied the paramountcy principle of B's welfare applies as Lady Justice Black described in A v B and C [2012] 2 FLR 607; and consider that it is in B's best interests to make an order which recognises the significant parental role that the applicant played in B's life. It is a role that B recalls and which formed part of the foundation of her infancy and will have positively affected her sense of identity when she was very small and growing up. The order will remain in force for the duration of the CAO as provided for by statute which is until B is sixteen (s9(6) CA)".

23. In A v B and C [2012] 2 FLR 607, Black LJ, as she then was, noted, in the context of the same sex parenting case, the inherent dangers in a prescriptive approach towards parental responsibility. This, it strikes me, is equally applicable in a much broader range of cases. Ultimately, it is the child's welfare which will illuminate whether an order is made, or not:

"[39] I have no doubt that it would be seen as helpful if this court could lay down the sort of guidance that Hedley J declined to give and it was partly with this in mind that I gave permission for this appeal. However, after much consideration, I have concluded that this is an area of family law in which generalised guidance is not possible. As Thorpe LJ says at §23, all cases are so fact specific. The immutable principle is that the child's welfare shall be the court's paramount consideration in determining issues such as residence, contact and parental responsibility. Section 1(3) Children Act 1989 provides a useful framework for identifying the sort of factors that will bear upon each decision…"

24. Ms Demery, the children's Guardian, has, in my judgement, captured the personality and character of D in her report. So too has his aunt, in her evidence. Despite the interruption in their relationship, she is obviously extremely fond of him. What emerges is a young man who wants a little time and space to unravel some of the dramatic changes that have taken place in his life. Most strikingly of all he impresses me as wishing to recover some of his autonomy. The circumstances in which he left New Zealand afforded him no respect at all. The experience, which I have read he seems reluctant to speak about, is bound to have been a traumatic one both for him and K. Alongside the shock of leaving his entire life behind, without any real notice being given to him, he was also placed in a parenting role to K. The circumstances that he faced, over a 32-hour journey, would have been challenging to an experienced adult carer. I note that his answers to Ms Demery are frequently ambivalent e.g., wanting to live with his aunt for 2 years and then perhaps live with his father; indicating that he "probably" would not want A to have parental responsibility; indifferent on the question of whether he would want to meet the Judge.
25. D plainly wants to have some control over his life and relationships and to absorb the dramatic changes that have taken place. He has always known that A is not his biological father and the nature of their relationship is inevitably different from that of K and A. D strikes me as interested in his birth father but wary of being hurt. He plainly feels safe with his aunt and from the answers he has given to Ms Demery, presents as wanting to give his father the opportunity to prove his commitment. I hope his father hears this message. It strikes me as clear and reasonable.
26. Ms Demery assesses A as committed and caring to both children. In his discussions with her, A emphasised that his applications are "born out of his love and concern for them". He correctly emphasises, as I have done above, that he was, until recently, the only father that K knew. He also points out that he was, in effect, in a paternal role to D since he was six years old. It is obvious that when D engages with him on the telephone to any protracted extent, A is absolutely delighted. He is consistently and instinctively child focused and pleased that D has retained some contact with his friends in New Zealand, despite his abrupt separation from them. It will have been embarrassing for him and must have been extremely difficult for D to explain to his friends what had happened. It will have required a degree of courage. A is also supportive of D's birth father. This is not in any way tactical within the proceedings, it is a reasoned and thought-through understanding of how important it is for D to have a father figure and an insightful recognition that it will dilute the pressure on him to assume "the role of protector to his sister". He is highly alert to the fact that, as "the older child", D has been caught in the middle of adult conflict. I consider it to be impressive that whilst he understandably worries that the mother might attempt to abduct Y, he nonetheless, instinctively understands the importance of the contact for their daughter Y. It is also of note that A described M as "a good mother when she is in a positive mental space". I consider that despite their acrimonious separation, A will be able to present a positive image of M. He understands that he must do that for Y but he also recognises the positive aspects of his ex-wife's character.
27. D clearly wishes there to be free, easy, comfortable contact between each of the siblings. They are obviously close. He is keen that they be allowed to conduct this informally and on their own terms as any sibling would. Again, D's views strike me as entirely reasonable. Ms Demery considers that D has reached an age and level of maturity where it is appropriate to attach significant weight to his views. I agree but would add to that. The respect to be afforded to his evolving autonomy is, in my judgement, an important consideration. Understanding the significance of it requires an appreciation of the extent to which it has not been respected in the past. I do not think, given D's age, the existence of a Parental Responsibility Order in favour of A would either add to or subtract significantly from the quality and importance of their relationship, each to the other. By contrast, to overrule both D's consistently expressed wishes and his feelings (resistant to the Parental Responsibility Order) would, I think, generate a sense of disempowerment which, in the light of his experiences, is likely to be inconsistent with his best interests and general welfare. Accordingly, I do not propose to grant the order in respect of him.
28. It is important that I record that A was anxious that the children might react adversely if there was a different outcome to his application in respect of each of them. I find that to be a characteristically healthy and instinctive response but I am satisfied, from what I am told, that the children are unlikely to spend much, if any time, discussing Parental Responsibility Orders. They are far more focused, as they should be, on the day-to-day challenges and activities that forge their world.
29. The children's guardian has not supported A's application for parental responsibility in respect of either child. Much of Ms Demery's analysis, in her substantive report, was focused on where and with whom the children live. That was the major point of contention at the time. Understandably, less thought had been given to the question of parental responsibility. For this reason, I requested an addendum which was filed on 12^th July 2024. In her substantive report, Ms Demery made the following observations about the children:

"[D] and [K] are charming and engaging children who have a good relationship with each other. They have experienced recent seismic changes in their lives, the separation of their mother and stepfather, change of home and country without their sister and their mother who has been their primary carer. They are living in a country which [D] left at the age of 6 and [K] at the age of 2. Before their departure to New Zealand, [D] had already experienced neglect because of his mother's poor mental health. The international movement of children, based on unilateral decision making by one parent without consultation with the other is harmful to children. This appears to be one of many harmful childhood experiences that [D] and [K] have borne on account of their mother's actions. The information within the court bundle details the serious allegations that the children's mother and stepfather make about each other of domestic abuse, poor general care and parenting and lack of stability. These incidences have negatively affected [D] and [K]'s emotional world and threatened their safety. They may need specialist help to overcome these harmful experiences. [D] was already beginning to access therapy while in New Zealand".

30. In her addendum report, Ms Demery reiterates the concern in her initial report that D's answers reveal the influence of his mother. On my reading of the papers, Ms Demery is right to emphasise this, indeed, I consider there is clear evidence of M's influence. The following analysis is proffered, on the question of parental responsibility:

"Turning to the issue of [A] being granted parental responsibility, in my view his desire to be granted such is borne out of his genuine concern for [D] and [K], which I fully understand as he was so involved in their lives during their formative years. I appreciate that he would wish to have this acknowledged and for him to have some input in their lives. It adds an additional layer of complication in agreeing arrangements for the care of the children, given he is in another country, and the communication between him, [M] and [S] is strained. [D] has his own reservations. Nevertheless, I think it is important that he is kept informed of the children's progress and wellbeing".

31. There is no doubt that in some cases, the making of a Parental Responsibility Order can, as Ms Demery suggests, "add an additional layer of complication" in determining arrangements for the children's care. However, as King LJ observed, in most cases the "day-to-day realities of life" mean the parents frequently act alone. As King LJ says, this particularly applies "where the parties live in separate households and one parent is the primary carer". Some parents misuse Parental Responsibility Orders to interfere unhelpfully in their children's lives, not infrequently, to exert control over a former partner. Nobody suggests that arises here. On the contrary, the integrity of A's application is beyond any doubt.
32. It is a happy feature of this case that K's introduction to her father, who had, hitherto, had absolutely no role in her life at all, appears to be going very well. They have strikingly similar interests and personalities. I also have a strong impression that this ten-year-old girl is very much in control of the situation. Like her father, she enjoys video games. She describes him as "very competitive". Though he did not give evidence, he spoke to me from the well of the court. He told me that as far as his daughter was concerned, he had "got on the ship and would be on it until the end of the voyage". Despite the background history, I found his asserted commitment to be spontaneous and genuine. That said, as the guardian points out, the relationship is in its early stages and its history could hardly be described as propitious. It is also significant that A is not only supportive of this new relationship, but, in my judgement, reassured by it. On the other side of the world, he plainly worries about K whom he has long regarded as his daughter.
33. When I consider the case law, it strikes me as beyond any doubt that A has shown a lengthy and instinctive commitment towards K. There is no doubt either that she has regarded him as her father, she was led to believe that he was her real father. I am satisfied that there has been a strong attachment which has, doubtless, been buffeted to some degree, both by the traumatic circumstances of her removal from New Zealand and M's negativity towards A. He must, however, be a significant figure in her history and an important part of her evolving identity. The Parental Responsibility Order recognises the reality of A's status in her life. It may also serve to signal to K that A's commitment to her did not waiver on their separation. It strikes me as an Order that has the capacity to reassure K that she was loved by the man she regarded as her father for so long. Inevitably, A and K's relationship is changing and will change further. The distance between them may mean that they will gradually recede from each other's lives. It is likely, on all the available evidence, that the Parental Responsibility Order will do no more than reflect A's status. I do not consider this to be a case where such an Order will add any layer of complication to K's life. In this, I disagree with the Guardian's hypothesis. There is a great deal of evidence of A's real understanding of and focus upon K's welfare needs.
34. It is important to highlight that M has twice, unilaterally, removed her children from their habitual residence, without informing her partner. It is entirely understandable that A worries that she might do that again. If that situation arose, A considers that the Order would avail him of the opportunity, if required, to step in to protect K's interests. In this, he is correct. I do not, however, consider that would create a layer of complication, on the contrary, it may afford an added level of protection for her. It is clear to me that A regards this Order as recognising responsibilities and not as affording him rights. His entire conduct throughout this litigation is evidence of that. Importantly, this bodes well for the future. I also consider, for all these reasons, that it is in K's best interests that the Order should be made and accordingly, grant the application.