G (Children), Re

LORD JUSTICE THORPE: The appellant, W, formed a relationship with CG in August 1995 and they cohabited until May 2003. During the course of their relationship they enlarged the family by first, the birth of M on 2 February 1999, and then M, on 26 June 2001. Both are the biological children of the respondent conceived by anonymous donor insemination. CW, the appellant, has a son, J, who is aged 16 and not the subject of these proceedings.

On a date in September the appellant obtained leave to make an application for shared residence in respect of M. No application was necessary in relation to the older child because of the terms of section 10(5)(b) of the Children Act 1989, which provides:

A CAFCASS officer, Mrs Barrow, was appointed to the case and she prepared a written report, dated 8 June 2004, which was available to the judge and to the parties on the first date of the contested hearing in the Telford County Court, 18 June 2004. Most unfortunately only a day had been allowed. Predictably, I would think, the case did not conclude in a day, and the court was unable to accommodate the adjourned hearing until 16 and 17 November.

On 22 November the judge handed down her reserved written judgment. She refused the appellant's application for a joint residence order, but tempered the grant of the sole residence order to the respondent by making a series of section 8 specific issue orders which were designed to ensure that the appellant retained a significant role in the lives of the children.

On the second day of the hearing, namely 16 November, the respondent revealed her intention to move to permanent residence in Cornwall with her new partner. She further revealed that she had taken significant, but as yet tentative, steps to achieve that end over the course of the five-month adjournment.

A significant feature of the fact that the parties to this appeal had been in a same sex relationship was that the appellant could only achieve parental responsibility in relation to these two children if she succeeded in her application for a joint residence order. That is common ground at this hearing. It is also agreed that it is the consequence of the terms of section 4 of the Children Act 1989 which, under the head "Acquisition of Parental Responsibility by Father", provides:

There have been some enactments not yet brought into force which will have the effect of enlarging the present limited terms of section 4(1). The Adoption and Children Act 2002, by section 12, inserts into the section 4 that I have already cited, a new section 4A which provides for the acquisition of parental responsibility by a stepfather. The further relaxation is achieved by section 75 of the Civil Partnership Act 2004 which, by section 75(2), inserts into section 4A(1) the words: "or a civil partner of" immediately after the words "is married to". However, the 2002 Act has not yet been given a commencement date and recent indications are that the planned commencement in September 2005 has been further postponed until the end of the year. A commencement date has not yet been given to the 2004 Act. I refer to these two statutes, therefore, only as an indication of a perceivable statutory trend towards the relaxation of the boundary originally set by section 4.

Since the appellant is not in a position to fit within the provisions of section 4 her only route to the acquisition of parental responsibility is via section 12(2) of the statute, which provides:

The report of the CAFCASS officer, to which I have already referred, provided the following assessments for the judge:

There followed from that assessment the recommendation:

The CAFCASS officer, Mrs Barrow, was recalled to the adjourned hearing in order to deal with the revelation that Miss G was planning to move to Cornwall. She accordingly gave quite extensive oral evidence which has not been transcribed but which is quite fully summarised in the judgment of Her Honour Judge Hughes, who had had judicial control of this case, if not from the outset, certainly from January 2004. In her judgment, she recorded the evidence of Miss W to the effect that she wished to have parental responsibility so that she could have proper legal involvement with the girls' lives. She had set out in her written evidence (on a single sheet at page C360 in the second bundle) what practically she sought to achieve by way of involvement in the girls' lives from the foundation of a parental responsibility order. She said that involvement in those areas would give the children a clear understanding; that she was in their lives to love, support and help them and was involved in important areas of their lives. The judge recorded the contrasting evidence of Miss G to the effect that Miss W should be viewed as an extended family member, not in a parental position. She did not wish Miss W to be a parent and did not accept that she could care for the children properly.

No doubt purely in response to the revelation of the plan to move to Cornwall, Miss W had advanced at the adjourned hearing an alternative case, that preferable to that would be for the children to move to her as a primary carer. That was certainly not the case that she had advanced at the outset. The oral evidence of the CAFCASS officer has, as recorded by the judge, been analysed by Mr Stephen Cobb QC to state seven specific foundations for the assessment and recommendation which I have already cited. The first was to this effect: she stated that excluding Miss W would not be helpful to the two girls when they were trying to understand their history and their early lives; secondly, that a shared residence order would help the girls to have a clear picture of where they fit in as they grow older; thirdly, that a joint residence order would work to specify in detail what arrangements there should be; fourthly, that it would help the children to know both parties were involved with their education; fifthly, that a joint residence order would require Miss G to share information with Miss W; sixthly, that a joint residence order would help the children to understand where Miss W fits in and to understand this better in years to come if an order gave her a legal importance in their lives; seventhly, that a joint residence order would encourage the parties to recognise the reality of the children's early lives.

The judge records Miss Barrow's acknowledgment of the potential for disputes over issues such as education, but also her optimism that the animosity between the parties would dissipate over time. It is of importance in my judgment to note the judge's record of Mrs Barrow's expressed fear that Miss W would be marginalised if she was not involved in the girls' lives by having parental responsibility and therefore being involved in various issues and decisions.

In her reserved judgment, the judge made an important finding in relation to the revelations from Miss G on the second day. The judge expressed her finding thus:

Neither junior counsel who appeared below, nor leading counsel who have come in to argue the appeal, are able to shed any light on the document there referred to and relied upon. It was apparently only mentioned in the judgment and not at any stage of the trial.

The judge went on, however, to find in the closing paragraph of her judgment that:

Mr Cobb, in the course of his elegant submissions, has described this resulting order as but a pale shadow of what Miss W would have achieved had she been granted a joint residence order. He has taken us through the order as sealed, comparing paragraph by paragraph the appellant's ambitions as defined at page C360, and he has shown that in a number of respects where Miss W sought consultation she was reduced only to notification. Other of her objectives were implicitly rejected by the judge since they found no place in her order.

Mr Cobb's skeleton argument is comprehensive in its criticism of the judgment. For present purposes I will only summarise its main heads. His first ground, expanded in his skeleton argument, is that the judge rejected the recommendation of the Cafcass officer without sufficiently reasoning and justifying her departure. His second ground is that the judge had not sufficiently identified the importance of the indirect application for parental responsibility and had not had regard to authority in that area, as well as to current trends both in statutory and judicial evolution of family law in the context of same sex relationships. In his third ground Mr Cobb submits that the judge failed to pay proper heed to the CAFCASS officer's warning that without parental responsibility Miss W would be marginalised. In his fourth ground Mr Cobb submits that the judge gave too much weight to the difficulties in current relationship between the parties as a factor that precluded a joint residence order. Fifthly, he submits that the judge did not specifically address the benefits to the children in the making of shared decisions as to their future - that is, essentially flagging up the importance that this court has attached consistently over recent years to the benefits of shared parental responsibility.

To some extent these submissions interrelate and overlap. They have been answered broadly by Mrs Heather Swindells QC who, with her characteristic advocacy, has properly emphasised that this was a case that the judge had had responsibility for from the outset. She had thereby acquired an unrivalled opportunity to assess the parties and the state of the relationship between them. To that extent she was fully entitled to depart from the CAFCASS officer's optimistic assessment of future diminution in conflict and, on her assessment, which Mrs Swindells suggests is more realistic than the CAFCASS officer's, the giving of clear primary responsibility to the birth mother, was well within with the area of her discretion and properly safeguarded by the detailed section 8 orders.

That brief summary of the argument demonstrates how ably the case has been advocated before us and, before stating my ultimate conclusions, I would like briefly to record the well known lines of authority that bear on the outcome.

Mr Cobb rightly stresses the judgment of Wall J (as he then was) in the case of A v A (Shared Residence) [2004] 1 FLR 1195. Mr Cobb particularly emphasises a citation, in the course of paragraph 23 of the judgment, from the report of the children's guardian, who had said of those parents:

I turn now briefly to authority in relation to applications for parental responsibility. The starting point is the well known three-fold test developed by this court in Re H [1991] FAM 151. Beyond that, in the case of Re C and V [1998] 1 FLR 392 Ward LJ in his judgment emphasised the benefits to be achieved for a child by the grant of parental responsibility to both parents. I quote only a brief passage from his judgment at page 397:

As to the obligations on the judge to give proper effect to the recommendations of the CAFCASS officer or alternatively to explain fully and cogently her reasons for rejecting them, the starting point is the decision of this court, and specifically the judgment of Purchas LJ, in W v W [1988] 2 FLR at 505. Mr Cobb demonstrates how over the passage of years the obligation on the judge has, if anything, been magnified; and he demonstrates that by citing the more recent case of D v D [2001] 1 FLR 495.

Finally, I come to the authorities that demonstrate the evolution of the judicial acceptance of the diversity of the family in modern society. Mr Cobb cites the judgment of Singer J in Re W [1997] 3 FLR 650, the decision of the House of Lords in Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 and, more recently, the decision of the House in Ghaidan v Godin-Mendoza [2004] 3 WLR 113. He has selected a passage from the speech of Baroness Hale in paragraphs 141 and 143 which neatly demonstrates the present state of the judicial recognition and acceptance of family diversity. Baroness Hale said:

Although Mr Cobb has not asserted discrimination against his client he has made the general observation that had the case concerned the two children of a heterosexual couple who had cohabited between 1995 and 2003 and the father, being the absent parent, had sought the parental responsibility order on the strength of the same degree of past and proposed future commitment as has been demonstrated by Miss W, the outcome would have been evident.

Thus I have reached the clear conclusion that Mr Cobb is entitled to succeed on more than one of the grounds that he has advocated. I am not sufficiently reassured by Mrs Swindells' argument that the judge's explanation for the rejection of Mrs Barrow's recommendation and warning was sufficiently well grounded and sufficiently explained. After all, whether or not endless disputes are predictable between the two adults depends not on the nature of the court order, so much as on the nature of the relationship between them. Accordingly, it does not seem to me to be sufficient for the judge to say that a parental responsibility order, as opposed to the order that she preferred, would be provocative of disputes that otherwise would have been avoided.

But perhaps more crucial for me was the judge's finding that between the first and second days of the hearing the mother had been developing plans to marginalise Miss W. In that context it is relevant to refer to the publication in July 2004 of the Government's Green Paper in relation to contact difficulties. That Green Paper has led to the relatively recent publication of the draft Children (Contact) and Adoption Bill. The Government has by its consultation paper and its subsequent proposed bill highlighted the very great social problems that have been developing over the last few years as a consequence of an increased tendency for primary carers to ignore or to observe only in the letter court orders designed to guarantee contact to the absent parent. The whole purpose of the Bill is to introduce new powers and management techniques for judges to combat such adult manipulation. The CAFCASS officer had expressed a clear fear that unless a parental responsibility order was made there was a real danger that Miss W would be marginalised in the children's future. I am in no doubt at all that, on the judge's finding, the logical consequence was the conclusion that the children required firm measures to safeguard them from diminution in or loss of a vital side of family life - not only their relationship with Miss W, but also with her son. The parental responsibility order was correctly identified by the CAFCASS officer as the appropriate safeguard. The judge's finding required a clear and strong message to the mother that she could not achieve the elimination of Miss W, or even the reduction of Miss W from the other parent into some undefined family connection. It may be that the mother's own needs and emotions drove her in that direction, but that road had to be sealed off for, if not sealed off, it would be taken at a real cost to the children. I do not think that that factor was sufficiently identified by the judge.

For all those reasons I would allow the appeal and grant the joint residence order that the judge refused.

LORD JUSTICE TUCKEY: I agree.

LADY JUSTICE ARDEN: I also agree.