In the Matter of A (A Child: Leave to apply for a child arrangements order)

I have before me an application for leave to apply for a child arrangements order. The application concerns a young girl, Alice. Alice is 9 years old.

In Re G (Children) [2014] EWCA Civ 336, Black LJ observed that ‘Families are formed in different ways these days and the law must attempt to keep up and to respond to developments’. Alice’s story is an example of the different ways in which modern family life is formed. Modern family life can be complicated.

Rachel is Alice’s biological mother. Alice was conceived by donor insemination with sperm from a known donor. At the time of conception Rachel was in a same-sex relationship with Helen.

David is Alice’s biological father. At the time Alice was conceived David was in a same-sex relationship. That relationship broke down some years ago. David now lives abroad. David does not have parental responsibility for Alice.

In 2006, shortly before Alice was born, Rachel and Helen entered into a civil partnership. In 2009 they separated. At the time of their separation Rachel was suffering from serious mental illness. She was diagnosed as suffering from schizophrenia and schizoaffective disorder. She was detained under s.3 of the Mental Health Act 1983 and placed in a secure unit.

Since Rachel and Helen separated Alice has been cared for by her non-biological mother, Helen. In 2009 Helen applied to the court for a residence order. An order was made by consent.

At the beginning of 2009 Helen formed a relationship with Matthew. Alice was then aged 3. A few months later, Matthew moved in to live with her. Matthew is a female to male transsexual. At the commencement of his relationship with Helen he was at the beginning of the transition process.

Helen and Matthew separated in February 2013. By then Matthew had completed the transition process.

Since they separated there has been some contact between Matthew and Alice. That contact ceased in July 2014.

Matthew has now formed a relationship with James. Matthew and James live together.

There are two other relevant adults whom it is appropriate I should mention. Helen has two older children from a previous marriage, Lucy and Susan. They are full siblings. Both are now adults. Although Lucy is living at home she was not living at home when Matthew was there. Susan has always lived with her mother. She has physical and learning difficulties. She is supported by a social worker and has carer support at home.

When Matthew cohabited with Helen he played a part in caring for Alice. He now wishes to resume his relationship with Alice and have contact with her. He applies to the court for leave to apply for a child arrangements order.

Because of the exceptional circumstances of this case, I made Alice a party to the application and appointed an officer of Cafcass to be her children’s guardian (‘the guardian’).

I have already referred to Rachel’s mental health difficulties. Helen and Matthew also suffer from mental health difficulties. Although there is no independent expert medical evidence before me, Helen and Matthew have each produced a brief medical report, Matthew from his treating psychiatrist and Helen from her GP. Helen has also produced a report from her community psychiatric nurse.

Helen has a primary diagnosis of emotionally unstable personality disorder. She also has a longstanding history of anxiety and depression. She has suffered from fibromyalgia for a number of years. Her GP reports that,

Helen’s mobility is limited. She has support from local authority carers in addition to the carer support provided for Susan.

Matthew suffers from Non-epileptic Attack Disorder, the emotional consequences of past abuse and other depressive and anxiety symptoms. He continues to experience brief non-epileptic seizures which his psychiatrist considers to be stress related. His psychiatrist says that he,

Following an assessment by the Child and Adolescent Mental Health Service (‘CAMHS’) in 2014, Alice was diagnosed with Autism spectrum disorder. She continues to be supported by CAMHS.

If leave is granted consideration will then be given to Matthew’s substantive application for a child arrangements order. It is likely that expert psychiatric evidence will be necessary in order to resolve that application justly.

Upon Matthew issuing this application Cafcass undertook the usual safeguarding checks. The Cafcass safeguarding report revealed local authority intervention and support for Alice’s family. The local authority has ‘received numerous referrals and enquiries’ in respect of Alice. Between July 2008 and January 2009 Alice was the subject of a child protection plan. In late 2014 Children’s Services participated in a multi-agency meeting to identify support services for Alice and ‘to give consideration to whether she is also a “Young Carer.”’

If Matthew’s application is allowed to proceed it will be necessary to obtain disclosure of documents from the local authority in order to gain a fuller picture of the local authority’s involvement with this family and of its concerns.

Matthew and Helen lived together from May 2009 until February 2013. Each accuses the other of inappropriate behaviour. Matthew says that their relationship ‘was verbally and emotionally abusive’. Helen says that Matthew was ‘controlling and verbally and mentally abusive’ towards her.

According to Helen, she and Matthew did not live together continuously throughout the period from May 2009 to February 2013. She says that during the course of his transitioning Matthew,

Although he was at the beginning of the process of transition at the time his relationship with Helen began, Matthew says that Alice has only ever known him as a man although she was aware that he was transitioning from female to male. This was explained to her in an age-appropriate way.

Whilst Matthew and Helen were cohabiting. Alice began to call herself Daniel and stated that she was a boy. Some days she would wear clothes usually chosen by boys. There were times when she avoided playing with gender appropriate toys. Helen was very concerned about this. She felt that Matthew was encouraging this behaviour. Matthew denies that that was the case. Helen says that this behaviour has stopped since she and Matthew separated.

After moving in to live with Helen, Matthew became actively involved in Alice’s care. He regularly took her to nursery. He was named in nursery records as a key contact person. Alice began to call him ‘Dad’. She sent him Father’s Day cards each year. He says that he and Alice ‘became inseparable’; that he and Helen ‘co-parented’, working together ‘as a parenting team’; that he ‘took on a dominant parental role’; and that he became ‘a primary figure’ in Alice’s life.

Through her counsel, Helen accepts that whilst living with Matthew, Alice was a child of their family. She accepts that Matthew played a part in caring for Alice, though she does not accept that it was as extensive as Matthew claims. She also accepts that Alice would call him ‘Dad’ though she makes the point that Alice is aware that David is her biological father.

After his separation from Helen, Matthew continued to spend time with Alice and with Susan (for whom he also claims to have been a father-figure). This included both day time contact and, on occasions, overnight contact. However, arrangements did not always run smoothly. Both Helen and Matthew describe the arrangements as, at times, ‘sporadic’.

In June 2014 Matthew moved in to live with his current partner, James. Helen was unhappy at the prospect of Alice staying overnight with Matthew and James. The next month the contact arrangements broke down. Matthew has not spent time with Alice since 23^rd July 2014.

According to Matthew the circumstances in which contact broke down were acrimonious. He says that he and his partner, James, returned Alice and Susan to Helen’s house on the evening of 23^rd July. Helen was not there. She arrived a few minutes later. She had been out drinking with her carer. Matthew says that upon her return he ‘was on the receiving end of 45 minutes of verbal abuse’. Later that same evening he received ‘an abusive email…saying that contact would never be resumed’.

There are significant factual differences between Helen and Matthew. If Matthew’s proposed application is allowed to proceed, it will be necessary for the court to hear oral evidence and make findings in respect of some of the disputed factual issues.

Alice continues to live with her non-biological mother, Helen. Susan and Lucy also live there. Lucy is about to go to college.

Alice has regular contact with her biological mother, Rachel. Rachel was discharged into the community in February 2014. She now lives in supported accommodation. The residence order made in 2009 provided for Rachel to have monthly supervised contact with Alice.

Alice also has contact with her biological father, David. David lives abroad. He normally comes to England once a year. Alice spends time with him when he is in England. At other times she is in contact with him by Face Time and text messaging. David is aware of Matthew’s application. He has written to the guardian opposing it.

The guardian has met with Matthew, Helen and Alice. She confirms that Alice is fully aware of these proceedings and knows that Matthew wishes to see her and spend time with her. She has not expressed any anxiety about this application. She has not expressed any particular view as to whether or not she wishes to resume seeing Matthew. If anything, she has appeared disinterested.

There is a difference between the accounts given by Helen and Matthew as to the extent of his involvement in caring for Alice and whether he was in fact a significant person for her. The guardian notes that on Matthew’s account ‘he was in effect a step-parent. He has no other legal or familial connection with Alice.’

The guardian also notes Helen’s personal difficulties, to which I referred earlier. In her position statement the guardian refers to the anxiety which these proceedings are causing Helen. She says that,

The law relating to applications for leave to apply for a child arrangements order is to be found in s.10 of the Children Act 1989. So far as is material, s.10 provides that:E+W

In this case it is common ground that Matthew does not fall within any of those categories of persons who are entitled to apply to the court for a child arrangements order. In order to be able to apply Matthew needs the leave of the court. In determining the application for leave the court must have regard to the factors set out in s.10(9). Over the years, that subsection has been the subject of judicial consideration.

Re B (A child) [2012] EWCA Civ 737 concerned an application by a grandmother for joinder as a party to care proceedings. The leading judgment was given by Black LJ. It is clear from her judgment that the approach to a joinder application is similar to the approach to an application for leave under s.10. The following passages from the judgment bear on the decision I have to make:

As Black LJ noted, an application for leave under s.10 does not involve the court in determining ‘any question with respect to…the upbringing of a child’ for the purpose of s.1 of the Children Act 1989. It follows, therefore, that in determining Matthew’s application Alice’s welfare is not the court’s paramount consideration. However, that does not mean that her welfare is of no relevance. In Warwickshire County Council v M [2007] EWCA Civ 1084, Wilson LJ (as he then was) said that

Matthew describes his role in Alice’s life as a ‘parental’ role. In Re G (Children)(Residence: Same-sex Partner) [2006] UKHL 43, Baroness Hale explored the nature of parenthood. She considered four different ways in which a person may be a parent to a child: legal parenthood (§32), genetic parenthood (§33), gestational parenthood (§34) and social and psychological parenthood (§35). The latter is relevant in this case. Baroness Hale described social and psychological parenthood as,

In his submissions on behalf of Matthew, counsel contended that Matthew ‘co-parented as a step-father until the breakdown of the relationship in February 2013’. Re H (A Minor)(Contact) [1994] 2 FLR 776 concerned an application for contact by a stepfather following the breakdown of the relationship between himself and the child’s mother. At first instance, a Circuit Judge had made a contact order in favour of the stepfather. On appeal, Butler-Sloss LJ made it clear that,

On behalf of Matthew, counsel submits that an analysis which takes account of the three factors set out in s.10(9)(a) to (c) points clearly in favour of leave being granted. Matthew was involved in Alice’s care not only during the time he lived with Helen but for more than a year after they separated. His position is analogous to that of a step-parent. Alice knows him as a father-figure. He is not seeking an order that Alice should live with him but only that he should be allowed to spend time with her. The impact of such an order on Alice’s life would be minimal.

Counsel goes on to submit that, in reality, this is what he described as a standard contact dispute. Whilst accepting that court proceedings concerning children can be stressful and distressing, he submits that there is no reason to believe that the level of stress likely to be experienced by Helen in this case will be any greater than in most other private law cases. There is insufficient evidence (and no independent evidence) upon which the court could properly conclude that the impact of the proceedings on Helen would be such as to risk harm to Alice.

Counsel also makes the point that at the time Helen and Matthew separated, as a result of the provisions of s.10(5)(b), having lived with Alice for more than three years Matthew had an automatic entitlement to apply for a child arrangements order. He did not issue an application at the time because there was no need as he was having contact with Alice. By the time contact broke down completely he had lost his entitlement under s.10(5)(b) as a result of the provisions of s.10(10). He should not now be prejudiced as a result of a responsible decision to try to resolve issues of contact by dialogue rather than by litigation.

For Helen, counsel accepts that Alice was a child of the family within the relationship between Matthew and Helen. She accepts that Alice called Matthew ‘daddy’ though she says that it was he who encouraged Alice to do so. She does not accept that, if leave is granted, the impact on Alice will be minimal. In light of the considerable acrimony between Matthew and Helen in the past there is a real risk that giving leave will bring Alice into the arena of conflict and will be harmful to her. Indeed, she goes further submitting that the very fact that contact broke down in circumstances of acrimony and conflict is a key reason why leave should not be granted.

Counsel also notes and relies on the point made in the Cafcass safeguarding letter that,

Alice’s biological mother, Rachel, opposes Matthew’s application. She has filed a written statement. She says that she has noted ‘a marked improvement’ in Alice’s general wellbeing now that Matthew is not involved in her care. She goes on to say that,

Rachel does not have the benefit of legal representation. At this hearing she has been supported and assisted by a Mckenzie Friend. I allowed him to address me on Rachel’s behalf. He accepted that he is, as he put it, ‘paddling out of his depth’. However, he identified four issues which he submits are of particular importance: Helen’s health, Matthew’s health, gender issues and whether Alice has need of a father figure.

As for the first of those points, he says that Helen’s health problems are not a matter of dispute and that the stress that would be occasioned by allowing Matthew’s application would not be in Alice’s best interests. With respect to his second point, he says that it is clear from the letter from Matthew’s psychiatrist that his health difficulties are not going to go away. As for the third issue, he refers to the evidence that Alice displayed signs of gender confusion when Matthew was in living in the household and submits that he would represent an ‘ongoing danger’ if he were allowed back into Alice’s life. Finally, with respect to the suggestion that Alice needs a father-figure in her life, he makes the point that Alice already has two mothers with whom she has an excellent relationship. What she needs more than a father-figure is peace and quiet to enable her to get on with her life.

The solicitor for the guardian described Matthew as ‘plainly a significant adult’ for Alice. She makes the point that if this application led ultimately to a resumption of the relationship between Alice and Matthew then Alice would have a ‘father figure’ on the spot. However, if the court is satisfied that Helen’s health would be ‘tipped over the edge’ if leave were granted then that would be likely to lead to the risk of Alice suffering harm. Resumption of contact would not be worth it if the relationship between Alice and her two mothers were to break down. The point was also made that if there were to be a resumption of contact then Alice may be exposed to the acrimony which exists between Matthew and Helen.

The authorities set out guidance on the approach to be taken when considering an application under s.10 for leave to apply for a child arrangements order. The following appear to me to be the key points:

Section 10(9)(a) requires the court to have regard to ‘the nature of the proposed application for the section 8 order’. Matthew wishes to resume his relationship with Alice. In his written evidence he says that he seeks to persuade the court that Alice should stay overnight with him every Wednesday evening and alternate weekends. Although he does not say so expressly, given that he now lives with James it appears to be his case that Alice should spend time not just with him but with him and James. He would like Susan to be included in any future contact he has with Alice. He accepts that the court has no jurisdiction to make orders in respect of Susan.

Section 10(9)(b) requires the court to have regard to ‘the applicant’s connection with the child’. With respect to the four categories of parenthood identified by Baroness Hale in Re G (Children)(Residence: Same-sex Partner) [2006] UKHL 43, the only category which could possibly apply to Matthew is that of social and psychological parenthood. Although it is not appropriate for me to make a finding on that issue at this stage, I accept that the evidence strongly suggests that as a result of his domestic arrangements between May 2009 and February 2013 Matthew became a psychological parent for Alice.

It is clear from Re G (Children)(Residence: Same-sex Partner) that being a social and psychological parent is a status that is acquired over time as a result of ‘the child demanding and the parent providing for the child’s needs’ (§35). It arises as a result of the developing relationship that person has with the child concerned. It would appear to be reasonable to suppose, therefore, that what can be acquired over time can also be lost over time. I note with interest that whereas s.10(5)(b) permits an application for a child arrangements order to be made as of right by ‘any person with whom the child has lived for a period of at least three years’, that right is lost if the three years ‘ended more than three months before the making of the application’ – s.10(10). If leave is granted in this case then in my judgment it will be necessary at the hearing of the substantive application for the court to determine not only whether Matthew became a social and psychological parent for Alice but, if he did, whether he continues to be so.

Section 10(9)(c) requires the court to have regard to ‘any risk that there might be of that proposed application disrupting the child’s life to such an extent that he would he harmed by it’. Counsel submits that stress and distress is normal in any application relating to a child. I agree. Whether the stress and distress is likely to be greater than usual, and in particular whether the stress and distress is likely to ‘disrupt the child’s life to such an extent that he would be harmed by it’ is an issue of fact that is case-specific.

Helen is Alice’s primary carer. Helen suffers from the mental and physical illnesses set out earlier in this judgment. She has the assistance of a carer. She has caring responsibilities for her daughter, Susan, who lives with her. Susan, too, has the assistance of a carer. Helen also has to contend with the stress which comes with caring for a child suffering from Autism spectrum disorder. This is a family with considerable emotional and physical care needs, a family which, in my judgment, is more likely than many to find the burden of litigation challenging and disrupting of daily life and routine. The impact would not be short-lived. The need for further evidence – including, for example, expert psychiatric assessments of Helen, Matthew and Alice, full disclosure by the local authority, more detailed written evidence from Helen and Matthew which would need to be tested by cross-examination – is likely to mean that it would take some months before Matthew’s application could be finally determined. I have come to the conclusion that I am satisfied on the simple balance of probability that there is a risk of Matthew’s application disrupting Alice’s life to such an extent that she would be harmed by it.

That finding is not necessarily determinative of the application for leave. Risk always has to be balanced. The factors in s.10(9) are not exhaustive. The court must take account of all of the material features of this case. An unusual feature of this case, as identified in the Cafcass safeguarding report, is the range of adult relationships which Alice has. She lives with her non-biological mother and her two step-sisters. She has contact with her biological mother. She also has contact with her biological father. If contact with Matthew is resumed it is more likely than not that that contact will include James. It is appropriate to set out again the wise words of caution set out in the Cafcass safeguarding report:

Does Matthew have an arguable case for resuming contact with Alice? At §45 I noted counsel’s submission that at the point at which they separated in February 2013, Matthew did not need leave to make an application because he had been living with Alice ‘for a period of at least three years’. I also noted earlier, at §22, Helen’s assertion that Matthew had ‘spent several months in emergency accommodation’. Whether Matthew ever had an automatic entitlement to apply for a child arrangements order is an issue of fact which I am unable to determine at this stage.

There is no doubt that Matthew spent a significant period of time living with Alice during which he may well have become – and, indeed, may still be – a social and psychological parent. That is a positive factor to be weighed in the balance. However, there are other factors which must be placed in the other side of the balance. These include the range of adults with whom Alice already engages, the health needs of some of those adults, the fact that Alice is autistic, and the potentially damaging effect on Alice’s welfare of allowing Matthew to proceed with his substantive application. On balance I come to the conclusion that Matthew’s application for a child arrangements order is, at its highest, barely arguable.

The fact that Matthew has a case which is arguable, if only barely arguable, does not necessarily entitle him to be granted leave. Taking a global view of the facts and circumstances of this case I come to the conclusion that this application should be refused.