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Mother Squared = 1: Defining parenthood under Schedule 1

Byron James examines the judgment of Moylan J in T v B [2010] EWHC 1444

Byron James, barrister, 14 Gray's Inn Square

Byron James, Barrister, of 14 Gray's Inn Square

Christmas is nearly here. There is something depressingly cyclical about the way that, come a certain time of the year, usually late August, a certain type of person starts pointing out that Christmas is nearly here. Christmas is a state of mind which can lead to all manner of oddities and romanticisms: Tiffany from Eastenders pulling the PM, belief that it will snow and the prospect that families can actually all get along in a secluded environment with alcohol on tap. As everyone sits around clutching grim insults wrapped in gimpy paper, what they are actually waiting for is the ghost of Christmas Past to drop by, to reinvigorate a memory of a time when all this made sense. Perhaps I am just bitter:  last Christmas I sat holding a knitted jumper with the coarseness in feel and design of a Friday night in Chelmsford.

For those on the cusp of relationships, on the doormat of families, Christmas can be a really tough time. If those who have loved you since birth cannot manage a decent present, how can someone who hardly knows you? Whilst judging the right purchase of present is perceived as especially tough, the reality, of course, is that what matters is the person who sent it. Even a CD can seem priceless, if received from the right person. It is so important to know who the person giving you the present actually is: what if the person proffering a Barbie isn't your father after all? It all becomes a little creepy... So it was that the Family Division came to consider the question of whether a parent was in fact a parent, for the purposes of Schedule 1 to the Children Act 1989, in Moylan J's decision in T v B [2010] EWHC 1444.

Remember Schedule 1? For a time, footballers could be found skulking around dark corners of Movida with copies of Hershman and McFarlane sticking out their back pocket; it really was à la mode. Occasionally Schedule 1 reappears in the reported case law. Its latest manifestation raises the very essence of legal parenthood.

The dispute between the parties was summarised by Moylan J (para. 3):

"The Respondent contends that she is not a parent for the purposes of Schedule 1 because it is confined to those who have the status of parent or are within the extended definition contained within paragraph 16. The Applicant contends that Schedule 1 is not confined to those who have the status of parent but permits the application of a fact sensitive, welfare informed, approach to the determination of who is a parent within the scope of Schedule 1. On the application of such an approach, the Applicant submits that the Respondent is a parent."

Note the 'she'; both the 'parents' were female and had lived together between 1994 and 2007. No civil partnership existed. The child was born to the applicant through artificial insemination by an unknown donor. A shared residence order followed the breakdown of the relationship in 2009, with a finding by DJ Saffman (who made the order) that 'both took on the role of parents after (the child's) birth'.

The decision for Moylan J was whether (para 55): 

"as a matter of statutory interpretation, a parent against whom an order for financial provision for a child can be made under Schedule 1 is:
(a) confined to legal parents – i.e. biological parents and those who have become a parent by operation of law such as by adoption, under the HFEA 1990 or under the HFEA 2008 – and those otherwise included by paragraph 16; or,
(b) whether it extends, as submitted by Mr Goldrein, to include any person who has acquired parental responsibility (by virtue of an order) or who is a social and psychological parent, a "natural parent" as described by Baroness Hale in Re G".

Schedule 1 to the Children Act is difficult to interpret. Firstly, as Moylan J points out (para. 9) "it can be seen (from paragraph 1, Schedule 1) that substantive orders can only be made against a 'parent'". In what Moylan J refers to "as focused on the exercise by the court of its powers against those who come within the extended definition of parent as provided by paragraph 16", paragraph 4(2) sets out the criteria by which the court should consider exercising its powers under paragraph 1 against a person who is neither the mother nor father of the child. This despite that paragraph 1 is specifically referable only to a parent. The only definition of a 'parent' in the Children Act 1989 is contained within paragraph 16 which 'includes' any party to a marriage or in relation to whom any civil partner in a civil partnership in relation to whom the child concerned is a child of the family. The non sequiturs involved in understanding this statutory Escher sketch requires serious concentration indeed.

Thankfully, we, and indeed Moylan J, need not rely on the Children Act alone for definition of a 'parent'. In paragraphs 14 – 22, Moylan J gave consideration to a wide range of other guidance, from Law Commission paper (No. 74) 'Family Law Illegitimacy' (1979), the Human Fertilisation and Embryology Act 1990, implementing many of the Warnock Committee's recommendations in 1984, and the Human Embryology and Fertilisation Act 2008. In respect of the last, he gave particular consideration to that under the heading 'Cases in which woman to be other parent:

21. ....[T]he HFEA 2008 provides, in sections 42 to 47, who is to be treated as the "other parent" both when the mother is a party to a civil partnership and when she is not. Section 43 addresses the latter situation and defines the requirements which must be fulfilled for the "other woman … to be treated as a parent of the child". In the event that, pursuant to these provisions, a woman is treated as the (other) parent of a child, "no man is to be treated as the father of the child" (section 45). Further, where by virtue of these provisions, she is treated as the parent of a child, she is to be treated as the parent for all purposes (section 48).

Ultimately, by way of conclusion he found that:

22. It can also be seen from this brief summary that the term "parent", when used in the other legislation to which I have referred, has been used as a specific legal term meaning a child's biological parent or some other person specifically given the status of parent by express statutory provision.

Moylan J began his conclusion to his judgment by setting out that the respondent was clearly "a parent of the child in this case in the third way identified by Baroness Hale in Re G (Children) [2006] UKHL 43, namely as a social and psychological parent... as a result of her relationship with the child and the child's relationship with her" (para 54). However, "as Baroness Hale also notes, there is a difference between a "natural" parent, as defined by her, and a legal parent."

In a decision that the judge himself referred to as 'objectively surprising', he ruled against the applicant and came to the 'clear conclusion' that 'those against whom orders can be made under Schedule 1 are confined to those who are a parent in the legal meaning of that word'. The woman who had jointly undergone the artificial insemination with the birth mother, had lived with the same woman for 13 years, had raised the child as if the child's parent, did not fall under the legal definition of parent. Moylan J rejected the criticism of J v J (A Minor: Property Transfer) [1993] 2 FLR 56 stating 'there have been significant social advances since 1992 but these do not in my view undermine the effect of this decision'.

The judge also considered that section 10 of the Children Act gave a better guide to the meaning of parent within Schedule 1 than the wider 'welfare approach' of Baroness Hale in Re G, so that (para 59):

"In the context of jurisdiction under the Children Act, namely under section 10, it has been decided that parent means biological parent (or other persons who are parents by operation of law). This is the clear effect of Re A and, although a passing reference, is supported by Baroness Hale's comments in Re G [11]. The applicant in Re G was in the same factual position as the Respondent in the present case but, per Baroness Hale, she required leave to apply for a section 8 order which she would not have done if she was a "parent" by virtue of section 10(4)(a)."

Whilst it may be appropriate sometimes, according to the judge, to give wider definition to the word parent, "if Parliament had intended to alter or amend the general principles as to parenthood, specific enactment would have been made" (para 60).

One suspects that Moylan J was less than comfortable with, ironically, the likely wider, more socially conscious interpretation of his decision. Moylan J essentially left the decision and responsibility to Parliament for determining the relationship with a child, who in his own judgment has come to rely upon the respondent as a parental figure, and for whom the respondent has deliberately assumed parental responsibility by her own application, so that the child has no recourse through their birth parent for financial relief on their behalf under Schedule 1.

Perhaps, as is so often the truth in children cases, the respondent viewed the application brought by the birth mother as essentially a dispute about the breakdown of the adults' relationship. After all, the applicant had lost the shared residence battle the year before. Why should the respondent care so much as to fight for shared residence and parental responsibility but not be happy to participate in financial relief, if her belief was not that she would be providing for the child on her own volition without court order. However, is it satisfactory for the birth mother to have no remedy should the 'personal arrangement' fall short or not materialise at all? 

Family Law is often more than just a paroxysm of social conscience; it is actually something of a metaphor for the sort of society we wish to have. We thrust upon the judiciary a superimposed fractal vision, and expect them to see the wood from the trees when, as matters are examined under the microscope, it is easy not to notice the hordes outside with placards. This is just the sort of decision that, whilst possibly legally correct, and possibly mitigated by 'personal arrangements', is actually more than just 'objectively surprising': it is out of keeping with so much that is intertwined in the family law fabric between financial subsistence and parental relationships.

As Christmas stomps down the supermarket aisles with its gaudy consumerism thrusting lasciviously at you, consider the presents that your children might receive, and those giving them, for next year those donors maybe denying that they were there at all and all you have left is a memory, a ghost of Christmas past, to maintain a time when subsistence was available upon something other than a personally arranged whim.