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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> S v D & E [2013] EWHC 134 (Fam) (31 January 2013) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2013/134.html Cite as: [2013] 1 FLR 1334, [2013] EWHC 134 (Fam) |
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This judgment is being handed down in private on 31st January 2013. It consists of 41 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult parties must be strictly preserved.
FAMILY DIVISION
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF G (A MINOR)
Strand, London, WC2A 2LL |
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B e f o r e :
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF G (A MINOR)
____________________
S |
Applicant |
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- and - |
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D and E |
Respondents |
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AND IN THE MATTER OF Z (A MINOR) |
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T |
Applicant |
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- and - |
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X and Y |
Respondents |
____________________
Deirdre Fottrell (instructed by Goodman Ray) for D and E
Alison Russell QC (instructed by Natalie Gamble Associates) for X and Y
Samantha King (instructed by Burton Woods) for T
Hearing dates: 20th December 2012
____________________
Crown Copyright ©
THE HONOURABLE MR JUSTICE BAKER
Introduction
Background: Case One – Re G
' We wanted a known donor to make it possible for the child to find out more about its background. We were not looking for a father, we didn't want involvement, we, that is D and I were to be the parents.'
'importantly, I would be known to the child and to the rest of the world as its father, although it would not carry my name. I did not mind about the name, it was more important for me to be known to the child as its father, and to play the role perhaps as a friendly, caring and involved adult. The mothers did not request or want a financial contribution. We did not use a clinic authorised under the Human Embryology Fertilisation Act, or feel the need for a written agreement. In that respect, it seems ill-advised not to have gone into more detail about what we all expected from our relationship with the child in years to come or not to have recorded at least the key points that we had agreed in writing. But we were excited and such good friends over several years, so we thought there were no obstacles which could not be overcome. This was an informal arrangement among four close friends. In fact, in December 2007, we all went away together for a holiday in Le Touquet.'
'we thought that it might help us to draw even closer to the mothers and we were pleased that they were pleased enough with F to ask me to father another child. It seemed to be an acknowledgement that all was going well and they were happy with our fatherly behaviour towards F.'
According to E, T stated at one point during these discussions that S wanted his surname for the child, that he needed to be consulted about names and that he wanted to be on the birth certificate. E says that they informed him that, under the new law, D's name could be included on the birth certificate of the new baby. The mothers' case is that they told S and T that the children would continue to have their surname and that S would not be involved in the upbringing of the child.
'T and I are effectively being lost to the children, which will seriously weaken their lives and damage their well being. I believe that a rich and rewarding relationship with their father and his partner, their extended families and their friends, will add to their security and their life experience. It will also be perfectly compatible with their family home life with D and E. That was the original arrangement we had and was what we provided until July 2011.'
In a subsequent statement he adds:
'I will accept that the reality of becoming a parent to two new human beings was more wonderful than I had expected, and that I felt a stronger tie to both F and G than perhaps I imagined I would. I do not accept, however, that my expectations of the contact I would have with the children have changed. ….I do not dispute that D and E are perfectly adequate parents; they are much more than that. However, I believe strongly that the children would benefit from the presence in their lives of me as a father, and would be deprived if they were not allowed it.'
He added:
'If they had wanted a mere sperm donor who would have no involvement with the children I can not understand why they would choose a close friend who was already living around the corner from them whom they saw on a very frequent basis'.
'S has seen the children while socialising, and I do realise that this may have brought up feelings for him although he never showed any. However, S never expressed wanting to have a role, he hardly engaged with the children. In fact there was no relationship between him and the children or any official contact arranged between them….The change in behaviour came when T donated sperm to X and Y, our friends. It was T who started to portray F to the world as his and S's child (the picture on their civil partnership)… We do find it very important that F and G will be able to have contact with S when and if they want to. The relationship that might develop will be one that is led by the children, not by any of the adults. We have always reassured S about this, and will never break our word. Unfortunately S has, unilaterally, changed the nature of the agreement and now tries to force himself into their lives to have a position that was never intended or agreed, or in fact one that he had had no interest in having'.
'G was conceived after the HFE Act 2008 whilst E and I were in a civil partnership. S has no relationship with G and he and his witnesses hardly mention G. ….If the law is upheld, S should be told that he has no rights over G. He may have rights to F but the quality of contact with her is poor. We beg the court to put F under the same protection as G.'
In conclusion, D says:
'a donation is a gift freely given with no expectation of a return. Having a donor does not obligate a relationship between the donor and the resulting child. It does, however, allow the possibility of one if the child so desires. We will promise to facilitate contact with our children and S. This contact, however, will be when the children wish it and will be child led. That is what we always promised….We would propose that there is no contact until such time as G and F seek knowledge of their genetic background'.
"We don't feel safe any more living so close to the applicant, who has been seen by neighbours loitering and asking information about us, and decided to move out of the area. D has lived here for twenty years and is heartbroken…"
Background: Case Two – Re Z
'far in excess of what we had anticipated or wanted; however we increasingly felt pressurised by T to allow these visits to take place'.
She states that she and Y agreed because of the feelings of gratitude and because they wanted to maintain positive relations for the sake of Z. Y states that the only reason T saw Z fairly frequently during the first 18 months of his life was because she and X felt pressured to offer contact.
'We now feel that we should have perhaps have been firmer with T at an earlier stage, but that is easy to say in retrospect. Our desire to try and pacify him and to make things work resulted in us giving far more than we had ever wanted or expected to give'.
In addition, X and Y acceded to a request from T that he should set up a bank account for Z to access when he was 18 years old. X says that she and Y were very uncomfortable about this proposal but they agreed in the interests of trying to develop positive relations.
'very pleased to see me. He has a definite and obvious bond with me. He is entirely relaxed with me. …. X and Y stayed in the room throughout. Z was very pleased to see me and ran to me. He wanted to sit on my lap and read a book but every time he came over to me X distracted him and he returned to her side. Such was the atmosphere that I found it impossible to stay for the whole of the visit and S and I left early'.
X and Y describe this account as inaccurate. They state that T made no attempts to interact with Z during the visit. They do not accept that there was any sign of a bond between Z and T. X describes T's assertion that he has a bond with Z and that Z is entirely relaxed with him as 'a bare-faced lie'. X and Y add, however, that 'as things had gone smoothly we offered another two contact times in July and November'. In the event, T re-launched proceedings in July and no further contact has taken place.
'I am Z's birth father. I donated sperm to X to enable her to conceive…. Z is a mixed race child and has a strong physical resemblance to me. I regard it as fundamentally important that Z grows up with a knowledge of his Sri Lankan heritage. This is something that I am best placed to help him with. I believe it is in Z's best interests to know me and have regular contact with a caring father, and to have me as a successful role model in his life. My child deserves to be given every opportunity in life and that includes having his father in his life. I am applying for leave to apply for an order that I be allowed to have contact with Z on alternate weekends either on a Saturday or Sunday on an unsupervised basis… I have no wish nor is it my intention to interrupt or disturb the family life enjoyed by Z with X and Y… However, I do want to prevent my role in Z's life being relegated to that of an occasional visitor…. I understand that X and Y are concerned that my real intentions are to apply for residence order to enable me to acquire parental responsibility for Z. I have no intention of making such an application.'
'If we had held further discussions and drafted a contract then our different expectations may have been discovered sooner and we could have addressed them or decided not to proceed.'
'I wish to exercise my legal and parental rights to put Z's well being first, to halt the detrimental impact on Z, Y, myself and our family unit that T is causing. I want to restore my health and protect my relationship with Y. These things are more important that continuing to try to meet T's unagreed and unrealistic expectations. I want to protect Z from the emotional pressure T will place on him to achieve his aims of developing a father – son relationship.'
She adds that, when Z gets older he will be able to make his own choices which she will support. X accepts that her thoughts and feelings about the value that T could bring to Z's life have changed and she no longer thinks he can provide a role model for Z.
'I regret trying to accommodate him and being sensitive to his expectations which were never agreed and are completely unrealistic. He has used various tactics to achieve his personal goal. He has intimidated me, threatened our family unit and distorted the facts. He has created an acrimonious environment for Z.'
"The brutal reality is that we have only enjoyed a few weeks of settled family life together in total since Z was born. I have lived in fear of Z suffering emotional manipulation, growing up in conflict, being confused about the differing roles of adults in his life and his happy life being disrupted."
'uphold the purpose of the change in the law which makes us Z's legal parents. This law was put in place to protect same-sex parents conceiving with a known donor… the law recognises us as Z's sole legal parents and specifically exclude T's status by providing that he is not to be treated as Z's father 'for any purpose'. The law has to have some meaning, and it will be entirely inappropriate to treat T in a comparable way to a separated father or to a known donor who is the child's legal father.'
History of the Proceedings
Setting aside the order of 22nd November 2012
'Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ.'
'We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).'
'this rule gives a very general power to vary or revoke an order. It appears to be unfettered. But it is a wrong exercise of this power to vary or revoke an order where there has been no material change of circumstances since the earlier order was made and/or no material is brought to the attention of the second court which was not brought to the attention of the first. A party who unsuccessfully deploys all his material before a court should not be allowed to have a second bite of the cherry merely because he failed to succeed on the first occasion …. In short, therefore, the jurisdiction to vary or revoke an order under CPR 3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion.'
'The basis of that jurisprudence is that the jurisdiction under rule 3.1(7) is not a substitute for an appeal. There must be additional material before the court in the form of evidence or, possibly, argument. I would reserve the issue of whether additional argument in itself is enough to attract the jurisdiction of rule 3.1(7), but the general thrust of Collier is that the case before the court before which rule 3.1(7) is moved must be essentially different from one of simple error that could be righted on appeal.'
'There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. …. Like Patten J in Ager-Hanssen I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. …. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.'
S.10(9): statutory provisions and case law
"(9) Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to
(a) the nature of the proposed application for the section 8 order;
(b) the applicant's connection with the child;
(c) any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it …"
'It can be seen that section 10(9) does not contain anything in the nature of a test by which an application should be judged, nor even criteria which must be satisfied before leave can be given, nor is anything of the kind to be derived from the rest of section 10. Neither does the subsection circumscribe the factors that can be taken into account in determining the leave application; it leaves the court to take into account all the material features of the case and merely highlights certain matters which are of particular relevance'.
'48. As I said earlier, I do not see section 10(9) as containing a test. By picking out some factors to which the court should have "particular regard", it acknowledges by implication that there may be other factors which the court has to consider. It would be wrong, in my view, to try to list or limit these factors which will vary infinitely from case to case. One amongst them is plainly the prospects of success of the application that is proposed; leave will not be given for an application that is not arguable. I do not intend to attempt a definition of what is arguable but I would make a few observations before I leave the question of the proper approach to an application to which section10 (9) applies, whether directly or through an application to be joined as a party with a view to seeking the sort of outcome that could be the subject of a section 8 order.
49. The first observation is that the fact that a person has an arguable case may not necessarily be sufficient to entitle him or her to leave under section 10 or to joinder as a party. I say this because section 10(9) picks out other factors as requiring particular regard and I think it must follow that there may be situations in which, when the judge exercises his or her discretion, balancing all the relevant factors, the presence of an arguable case is outweighed by those other factors or, indeed, by any other factor that carries particular weight in the individual circumstances of the case….
50. The second observation is that there is room, in cases concerning children, for applications or proposed applications to be checked at a very early stage and without wholesale investigation. The court has a broad discretion to conduct the case as is most appropriate given the issues involved and the evidence available, see for example Re B (Minors) (Contact) [1994] 2 FLR 1, Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289, and Re N; A v G and N [2009] EWHC 1807 (Fam). Accordingly, some cases can appropriately be determined on submissions alone, for example. Furthermore, it is not always necessary for findings to be made in relation to all (or sometimes any) disputed facts, perhaps because the result does not depend upon them or because there are quite sufficient undisputed facts to form the foundation of the decision that needs to be taken.'
Human Fertilisation and Embryology Act 2008
"If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership, then … the other party to the civil partnership is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be)."
S.45(1) provides, in so far as relevant to this application:
"Where a woman is treated by virtue of section 42 … as a parent of the child, no man is to be treated as the father of the child."
S.48, so far as relevant to this case, provides:
"(1) Where by virtue of section … 42 … a person is to be treated as the … parent of a child, that person is to be treated in law as the … parent … of the child for all purposes.
(2) Where, by virtue of section … 45 … a person is not to be treated as a parent of the child, that person is to be treated in law as not being a parent of the child for any purpose.
….
(5) Where any of subsections (1) to (4) has effect, references to any relationship between two people in any enactment, deed or other instrument or document (whenever passed or made) are to be read accordingly."
Policy issues: Respondents' submissions
Policy issues: Applicants' response
'[32] So what is the significance of the fact of parenthood? It is worthwhile picking apart what we mean by 'natural parent' in this context. There is a difference between natural and legal parents. Thus, the father of a child born to unmarried parents was not legally a 'parent' until the Family Law Reform Act 1987 but he was always a natural parent. The anonymous donor who donates his sperm or her egg under the terms of the Human Fertilisation and Embryology Act 1990 is the natural progenitor of the child but not his legal parent: see ss 27 and 28 of the 1990 Act. The husband or unmarried partner of a mother who gives birth as a result of donor insemination in a licensed clinic in this country is for virtually all purposes a legal parent, but may not be any kind of natural parent: see s 28 of the 1990 Act. To be the legal parent of a child gives a person legal standing to bring and defend proceedings about the child and makes the child a member of that person's family, but it does not necessarily tell us much about the importance of that person to the child's welfare.
[33] There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child's welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is 'his' child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child (see, for example, the psychiatric evidence in Re C (MA) (an infant) [1966] 1 WLR 646). For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.
[34] The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child's mother, whereas the mother who provided the egg is not: 1990 Act, s 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.
[35] The third is social and psychological parenthood: 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 (Free Press, 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.'
[36] Of course, in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique. In these days when more parents share the tasks of child rearing and breadwinning, his contribution is often much closer to that of the mother than it used to be; but there are still families which divide their tasks on more traditional lines, in which case his contribution will be different and its importance will often increase with the age of the child.
[37] But 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….'
'[56]. However, a biological kinship between a natural parent and a child alone, without any further legal or factual elements indicating the existence of a close personal relationship, is insufficient to attract the protection of Article 8 ….
[57]. Moreover, the Court has considered that intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases in which the fact that family life has not yet fully been established was not attributable to the applicant …. In particular, where the circumstances warrant it, "family life" must extend to the potential relationship which may develop between a child born out of wedlock and the natural father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth ….
[58]. The Court further reiterates that Article 8 protects not only "family" but also "private" life. It has been the Convention organs' traditional approach to accept that close relationships short of "family life" would generally fall within the scope of "private life"….'
On the facts of that case, the European Court concluded:
'[62]. Having regard to the foregoing, the Court does not exclude that the applicant's intended relationship with his biological children attracts the protection of "family life" under Article 8. In any event, the determination of the legal relations between the applicant and his biological children here at issue – namely the question whether the applicant had a right of access to his children – even if they fell short of family life, concerned an important part of the applicant's identity and thus his "private life" within the meaning of Article 8(1). The domestic courts' decision to refuse him contact with his children thus interfered with his right to respect, at least, for his private life.'
'Respect for private and family life requires that everyone should be able to establish details of their identity as individual human beings. This includes their origins and the opportunity to understand them. It also embraces their physical and social identity and psychological integrity.'
Submissions on s.10(9) criteria and merits in the case of G
Submissions on s.10(9) criteria and merits in the case of Z
Discussion
Conclusions