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England and Wales High Court (Family Division) Decisions
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J v K & Anor [2025] EWHC 1268 (Fam) (21 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2025/1268.html
Cite as:
[2025] EWHC 1268 (Fam)
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Neutral Citation Number: [2025] EWHC 1268 (Fam) |
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Case No: ZC02/25 |
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
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Royal Courts of Justice Strand, London, WC2A 2LL |
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21/05/2025 |
B e f o r e :
THE HONOURABLE MRS JUSTICE JUDD
____________________
Between:
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J
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Applicant
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- and -
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K
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1st Respondent
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-and-
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London Borough of Haringey (through their Regional Adoption Agency, Adopt London North)
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2nd Respondent
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____________________
Sam King KC (instructed by Dawson Cornwell LLP) for the Applicant
The 1st Respondent appeared in person
Kathryn Blair (instructed by London Borough of Haringey Legal Services) for the 2nd Respondent
Hearing dates: 21st May 2025
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HTML VERSION OF APPROVED JUDGMENT
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Crown Copyright ©
This judgment was delivered in Court 48 at 2pm on 21st May 2025 and by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
THE HONOURABLE MRS JUSTICE JUDD
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Mrs Justice Judd :
- This is an application for an adoption order. The applicant is J, and the young person concerned is L, who will be 18 later this year. The respondents to the application are L's mother, K, and the London Borough of Haringey, through their Regional Adoption Agency, Adoption London North (ALN). K strongly supports the application, as does the Agency. Most important of all, L supports the application too.
Factual background
- L was born as a result of artificial insemination in 2007. The applicant and the mother began a relationship in 2005. They separated after a year or so, but then met again in 2008 after L was born. They recommenced their relationship and were engaged to be married. Their romantic relationship did not last and, as such, they separated in 2009, but they live close to each other and remain good friends. Neither of them has had another partner.
- When the applicant and the mother met again in 2008, the applicant took on the role of a father to L, who was six months old at the time. They have co-parented L ever since, having houses only 10 minutes or so away from each other. The applicant spent regular time with L, collecting from the childminder, doing activities, helping him with school work, attending school meetings. They spent most weekends together as a family, having meals together and going out. L has called the applicant dad from a very early age. The mother moved house at one point, and so the applicant moved as well so they could continue the arrangement. L has a bedroom at the applicant's house although he does not stay there overnight now, preferring to use his bedroom at his mother's house. The applicant has shared decisions about L's education and attended parent teacher meetings. L and the applicant have also gone on holiday together over the years, most recently in Canada. In 2016, the applicant submitted an application for a child arrangements order by consent so that his parental responsibility could be recognised (and a separate order for parental responsibility was made). At the time he was advised that he could not apply for an adoption order.
- More recently, the applicant was advised that he could apply for an adoption order so this application was issued on 23rd December 2024.
Legal framework
- The statutory framework for the making of adoption orders, and the consequences thereof, are set out in paragraphs 42 to 51 of the ACA 2002.
- Section 42(3) provides that an application for an adoption order cannot be made by a partner of a parent of the child unless the child has had his home with him and/or his partner for the preceding six months.
- Section 46 sets out the definition and consequences of adoption orders. Section 47 sets out the requisite conditions relating to consent or dispensing of the same, and Section 49 outlines who can apply for an adoption order. Section 51 deals with an application which is made by one person. For the purpose of this application, ss51(1) and (2) apply, as the applicant is not married or a civil partner, and the court is being asked to find that it is satisfied that he 'is the partner of a parent of the person to be adopted'.
- S144(7) ACA provides that 'for the purposes of this Act, a person is the partner of a child's parent if the person and the parent are a couple but the person is not the child's parent', and s144(4) that 'in this Act, a couple means (a) a married couple, or (aa) two people who are civil partners of each other, or (b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship'. S144(5) provides that partners in an enduring family relationship cannot be a person and his/her grandparent, parent, sister, brother, aunt or uncle.
- In Re E (Adoption by One Person) [2021] EWFC 45, Cobb J dealt with an application by a person who had been in a relationship with the other parent, which had ended just after the birth of the second child. In that case the question arose as to whether their situation was such that they could properly be described as partners in an enduring family relationship. They were not married or in a civil partnership and despite the fact they were no longer in a romantic relationship at the time of the application in respect of their second child, the judge concluded that, on the facts, a cohesive and integrated family life had been created for that child and her older brother. He found that they were indeed partners in an enduring family relationship.
- In coming to this conclusion he accepted the submissions of counsel for the applicant that the language and structure of the Act allows it to be interpreted in such a way as to fit the needs and circumstances of family life now. He referred to a line of cases relating to the making of adoption and parental orders, including Re T and M (Adoption) [2010]: EWHC 964 (Fam); [2011] 1 FLR 1487 (where Hedley J emphasized that an enduring family relationship does not require cohabitation and that the intention to create and maintain family life and a factual matrix consistent with that intention are necessary), Re X (A Child)(Surrogacy Time Limit) [2015] 1 FLR 349 (where Sir James Munby P stated that a child can have a home with separated parents living in different houses, and that it was proper to extend the statutory time limit, emphasising the importance of a "sensible" result in statutory interpretation), Re A & B (C & D) No.1 and No.2 [2015] EWHC 1059 and 2080 (Fam) (where Theis J made parental orders to separated commissioning parents), Re X (Parental Order: Death of Intended Parent Prior to Birth) [2020] EWFC 39; [2020] 2 FLR 1326 (where Theis J interpreted the HFEA 2008 to permit a parental order despite the death of one commissioning parent, aligning with the legislation's underlying thrust), and Re A (a child: surrogacy: section 54 criteria) [2020] EWHC 1426 (Fam); [2021] 1 FLR 35 (where Keehan J held that separated biological parents can still be considered partners in an enduring family relationship for parental orders).
- Finally, Cobb J referred to the speech of Baroness Hale in Re G (Children) [2006] 2 FLR 629, and, in particular, what she said at paragraph 35 about the meaning of a psychological parent:-
"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".
- In drawing together the threads of that case, Cobb J concluded, inter alia that the issue of whether people are living as partners in an enduring family relationship is a question of fact and degree, and a matter for the court to consider in every case.
- In the case of Re YP (Adoption of an 18 year old) [2021] EWHC 3168, Arbuthnot J held that the word 'home' was not merely something physical but to be construed by reference to an emotional connection between the applicant and child. In that case the child had not lived in a house with the applicant in the preceding six months, and had indeed been in a different country.
- Ms. King KC has also drawn my attention to the cases of W v Y [2021] EWFC 119 in which applicants who had never been in an intimate relationship were considered to have been partners in an enduring family relationship, Re P (A child) [2015] 1 FLR 1327 (McFarlane LJ) and Re Z (2024) EWFC 20 (Theis J) which involved applications for adoption by step-parents.
The nature of the relationship in this case
- Whilst the conjugal aspect of the relationship between the applicant and the mother did not last, I am satisfied they have been joint parents to L for almost the whole of his life and have operated as a family throughout, as is evidenced by the way they have lived their lives as I set out in the background section of this judgment. There is no requirement that the relationship between applicant and the mother has to be an intimate or conjugal one for them to be partners. In my judgement, they clearly are partners in an enduring family relationship because they are a family together. This is also apparent by the consent order in 2016 which gave the applicant parental responsibility.
- In those circumstances, the condition in Sections 51(1) and (2) are met.
- I am also satisfied that the requirements of Section 42(3) are met, in that the applicant has used the mother's home as his own in the sense that he spends time there with her and L, and also that L has his own space in the father's home a few minutes away, which he also uses. He does not spend nights there now but that has more to do with convenience than anything else.
- All the other conditions as to domicile, habitual residence, the ages of the applicant and L, and the mother's consent are met.
Welfare
- I therefore turn to the issue of welfare. In coming to a decision in relation to adoption, the child's welfare throughout his life is the court's paramount consideration. I must have regard to all the matters set out in the welfare checklist at paragraph 1(4).
- In a case involving a 17 year old like L, his wishes and feelings regarding the decision carry the greatest weight. The applicant is the only father he has ever known and he wants that to be recognised in law permanently. That decision is to be afforded the utmost respect, and is obviously in his best interests. I am satisfied from what I have read that L understands what the order will mean, that it is permanent and unchangeable, and relates to his status and that of any children he has, as much as everything else. L has not been joined to these proceedings, nor do I think he needs to be.
- His needs, like those of all of us, to have their family relationships to be fully recognised and respected. By this order he is gaining, and not losing, any family. He may wish to find out more about the donor who is his biological father, but this order does not affect that. That is part of his background, just as is the family who know him, brought him up, and love him. I understand from the documents that all of the wider family support the adoption application, most of all L's mother.
- The Annexe A report is entirely positive about this family and the benefits that this order will bring, not only to L, but to everyone (albeit it is L who must be my focus). In addition to all the other reasons for making the order, L may also benefit from gaining German nationality and under inheritance laws.
- The welfare arguments in favour of making this order are overwhelming. In all the circumstances I will make the order sought.
- Finally, I wish to thank Ms. King KC for the work she has put into the preparation of her skeleton argument which has been of the greatest assistance to me. I also want to thank those who instruct her, and Ms. Blair, who represents the adoption agency, for the help she has given too. Adoption cases can be very complex and, unsurprisingly, applicant, parents, and social workers can find the process difficult to navigate. That, in turn, can make the court's task very difficult and time consuming. The instruction of lawyers in these cases brings with it great benefits for all concerned.