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Re A (A Child - Application for leave to apply for a child arrangements order) [2015] EWFC 47

Application for leave to apply for a child arrangements order

The application concerned Alice, a 9 year old girl, whose family structure was of a complex nature. Alice was born to Rachel (her biological mother) and David (a known sperm donor who lived abroad and did not have parental responsibility). Rachel was in a civil partnership with Helen (her non-biological mother).

Both Rachel and Helen had mental health issues. (Rachel, schizophrenia and schizo - affective disorder and Helen, emotionally unstable personality disorder, anxiety and depression). Helen had limited mobility and received support from local authority carers. She also had two adult children from a previous relationship, one of whom (Susan) had physical and learning difficulties.

When they separated in 2009, Rachel was detained under the Mental Health Act 1983. Alice then went to live with Helen under a residence order (made by consent) where she had remained ever since. Following her discharge from hospital, Rachel has had supervised contact to Alice, provided for in the consent order.
Helen started a relationship with Matthew (a female to male transsexual in the process of transitioning, who also had mental health difficulties). The relationship subsisted from 2009 - 2013, during the course of which Matthew played a role in the care of Alice. When they separated, Matthew entered into his current relationship with James.

There were disputes as to fact, with Matthew and Helen each alleging abusive behaviour on the part of the other. Helen alleged that, due to Matthew's aggression caused by the testosterone used in his transitioning, they did not live together continuously and Matthew asserted that he had been in the "dominant parent role".

After their separation, Matthew continued to have contact to Alice for about 16 months, following which it ceased in acrimonious circumstances. Matthew then applied for leave to seek a child arrangements order.

Alice herself had been diagnosed with autism spectrum disorder. She was also said to have experienced some gender confusion, spending a period identifying as a boy.

David, with whom Alice had established a relationship by social media and occasional visits, was aware of the application and opposed it.

Rachel also opposed the application, considering that Alice's wellbeing had improved markedly since Matthew's departure.

Due to the exceptional circumstances, HHJ Bellamy made Alice a party and appointed a guardian. Her enquiries revealed that Alice had been subject to local authority involvement. Alice herself was reported to be aware of the proceedings but disinterested in the outcome.

If the application was to proceed, it would entail expert psychiatric evidence, disclosure of the local authority documents and a fact finding hearing.

Having set out s.10 Children Act 1989 in full, the judge noted that it was accepted that Matthew had to seek leave, pursuant to s.10(9).
He then considered the relevant case law, citing, in particular, Black LJ's  comments in Re B (A child) [2012] EWCA Civ 737  to the effect that s.10(9) did not contain a test, merely factors to which the court should have regard. One of these factors was plainly the prospect of success, but simply having an arguable case would not necessarily be sufficient. Additionally, whilst the child's welfare was not paramount, it was still relevant.

In terms of Matthew's role, drawing on Baroness Hale's judgment in Re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43, his claim to "parenthood" could only be as a "psychological" parent.

On his behalf it was asserted that his role in Alice's life both before and after the separation (said to be analogous to that of a step parent) and the "minimal impact" an order would have on her, militated in favour of leave being granted.

In addition, it was argued that he would have been able to apply as of right (by virtue of having lived with her for 3 years) had he applied earlier and that it would be unfair to prejudice his position because in seeking to avoid litigation he had not issued sooner.

Helen, although accepting that Alice was a child of the family, asserted that the impact of granting leave would be considerable and would bring her into a harmful arena of conflict.

The guardian felt that reintroduction of Matthew would have to be sustainable and of significant benefit to Alice, given the "extensive" number of adults with whom she was already involved.

Rachel asserted that granting the application would exacerbate Helen's health issues to Alice's detriment and might restart her gender confusion. She did not need a father-figure as she had two mothers. Moreover, Matthew's own mental health issues were ongoing.

The guardian noted Matthew had been a significant adult and could potentially be a father figure but also the risk of Helen's health deteriorating to Alice's detriment.

In considering the application, HHJ Bellamy looked at the s.10(9) factors in the light of the authorities, noting that, although he was not making a finding, the evidence strongly suggested that, in relation to the "connection with the child" required by s.10(9)(b), Matthew had become a psychological parent.

With respect to whether or not such a relationship could also be lost over time, s.10(5)(b) provided that the right to make an application based on 3 years of living with the child, expired after 3 months had elapsed. If granted, the court would need to determine not only if Matthew had been a psychological parent but also, if he had ceased to be so.

With regard to the issue of risk of disruption to the child (s.10(9) (c) ) given the features of Helen's illnesses, combined with her older daughter's needs and Alice's autism, this family had considerable care needs and would find continued litigation burdensome and disruptive. Accordingly, HHJ Bellamy concluded that there was a risk of the application causing harm to Alice.

The risk element had to be balanced with other factors and the court had to take account of all elements of the case. In this instance, the extensive range of adult relationships available to Alice was relevant.

As for whether or not Matthew had an arguable case, although there were positive factors to weigh in the balance, those on the other side included the range of adults with whom Alice was already engaged, the health needs of those adults and her own autism. On balance, the judge was satisfied that the case was, at best "barely arguable".

Accordingly, taking a global view, the application should be refused.

Summary by Katy Rensten barrister, Coram Chambers


This judgment is being distributed on the strict understanding that in any report no person other than the advocates (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 child and the adult members of her family must be strictly preserved.

The names of the child and of relevant adults have been changed and the identity of advocates has been omitted in order to protect the anonymity of the child and her family.

Neutral Citation Number: [2015] EWFC 47


1st June 2015


His Honour Judge Clifford Bellamy
sitting as a Deputy High Court Judge
(judgment handed down on 1st June 2015)

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Re A (A Child: Application for leave to apply for a child arrangements order)
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1. 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.

2. 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.

Principal characters
3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

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

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

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

11. 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.

The application
12. 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.

13. 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').

Health considerations
14. 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.

15. 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,

'She is currently on a long list of medication…The main problem is around pain and mood. In addition she has had difficulties with obesity and has had gastric bypass surgery resulting in a significant weight loss. Her physical and psychological state is such that any form of emotional trauma is likely to upset her condition medically.'

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

17. 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,

'is emotionally the best I have seen him in the last few years. He has progressed with psychotherapy and medication and his mood is generally stable. He still has emotional fluctuations when he is stressed but these are minimal and he manages them quite well with very little impact on his functioning.'

18. 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.

19. 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.

Local Authority involvement

20. 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."'

21. 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's relationship with Alice
22. 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.

23. 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,

'was struggling with the effects of testosterone, which caused him to be short tempered and aggressive…it was agreed that he should [move out] until this settled down. The Applicant subsequently spent several months in emergency accommodation…and spent a period of time staying at his father's address.'

24. 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.

25. 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.

26. 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.

27. 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.

28. 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'.

29. 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 23rd July 2014.

30. 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 23rd 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'.

31. 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's current relationships
32. Alice continues to live with her non-biological mother, Helen. Susan and Lucy also live there. Lucy is about to go to college.

33. 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.

34. 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's position
35. 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.

36. 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.'

37. 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,

'It is not unusual for proceedings such as these to cause anxiety on the part of the adults involved. It does however appear that Helen's physical and emotional health are likely to be affected by anxiety to a greater degree than might be usual. It is reasonable to suppose that any significant deterioration in Helen's mobility or mental health is likely to have an impact on the care she is able to give to Alice and her current support package may need to be reviewed or increased.'

The law
38. 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:

'(1) In any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order with respect to the child if—

(a) an application for the order has been made by a person who—

(i) is entitled to apply for a section 8 order with respect to the child; or

(ii) has obtained the leave of the court to make the application; or

(b) the court considers that the order should be made even though no such application has been made.

(2) The court may also make a section 8 order with respect to any child on the application of a person who—

(a) is entitled to apply for a section 8 order with respect to the child; or

(b) has obtained the leave of the court to make the application.

(3) This section is subject to the restrictions imposed by section 9.

(4) The following persons are entitled to apply to the court for any section 8 order with respect to a child—

(a) any parent, guardian or special guardian of the child;

(aa) any person who by virtue of section 4A has parental responsibility for the child;

(b) any person who is named, in a child arrangements order that is in force with respect to the child, as a person with whom the child is to live.

(5) The following persons are entitled to apply for a child arrangements order with respect to a child—

(a) any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family;

(aa) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child is a child of the family;

(b) any person with whom the child has lived for a period of at least three years;

(c) any person who—

(i) in any case where a child arrangements order is in force with respect to the child, has the consent of each of the persons in whose favour the order was made;

(ii) in any case where the child is in the care of a local authority, has the consent of that authority; or

(iii) in any other case, has the consent of each of those (if any) who have parental responsibility for the child…

(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…

(10) The period of three years mentioned in subsection (5)(b) need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application.'

39. 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.

40. 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:

'36. There is no guidance in the Children Act 1989 or the Family Procedure Rules 2010 which specifically assists as to the approach that should be taken to an application for joinder and the welfare of the child is not the paramount consideration in either an application for party status or an application for leave to make a substantive application because neither of these applications involves the court in determining "any question with respect to….the upbringing of a child"…

39. …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. …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 section 10(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. Suppose, for example, that the applicant wishes to advance a barely arguable case with many attendant problems in relation to a child with special needs who is securely placed with an irreplaceable long term family who will be unable to withstand the rigours of any further litigation.

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) …'

41. 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

'26. Whenever it is invested with a discretion whether to grant leave for proceedings to be issued, a court will have regard to the applicant's prospect of success in the proposed proceedings. From the sphere of proceedings relating to children I offer five examples:

…(c) An application under s.10(9) of the Act of 1989 for leave to apply for an order under s.8 requires the court to consider – in addition to other specified factors – "whether there is an arguable case": G v. F (Contact and Shared Residence: Applications for Leave) [1998] 2 FLR 799.'

He went on to make the point that,

'29. In relation to an application for leave under s.24(3) of the [Adoption and Children Act 2002] I therefore hold that, on establishment of a change in circumstances, a discretion arises in which the welfare of the child and the prospect of success should both be weighed. My view is that the requisite analysis of the prospect of success will almost always include the requisite analysis of the welfare of the child…'

Although that observation was made in the context of an application for permission to apply to revoke a placement order it seems to me to be consistent with the observations made at §26 that the same approach should be taken when determining applications to grant leave for proceedings to be issued under s.10 of the Children Act 1989.

42. 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,

'35. …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 (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…'

43. 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,

'There is no presumption that a stepfather should continue a relationship with a stepchild.'

On the facts of the case, dismissing the appeal, Butler-Sloss LJ made the point that,

'in a case where not only did the stepfather give the child his name, attend the birth and help to bring up the child for the first 6 months of marriage, but after the separation the mother provided for this child to see the stepfather on a regular weekly basis, staying overnight with the stepfather and his family, and then without warning brings that continuing relationship abruptly to an end, it is not a surprising question to ask: why, having started it, did you stop it? She might, if she had chosen, have not permitted it at all.'

Butler-Sloss LJ went on to say that the case was a most unusual case and that she 'could not believe that such a decision' [i.e. a decision to make a contact order in favour of a step-parent] 'would be made very often'. However, she accepted that,

'there has from time to time to be a recognition that there are people in the life of a child, who do not have a biological relationship, who can none the less be very important indeed to the child.'

The submissions
44. 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.

45. 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.

46. 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.

47. 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.

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

'A re-introduction of the relationship between Alice and Matthew needs to be sustainable and it is imperative that there are significant benefits to Alice in promoting [contact with Matthew] given the extensive number of adult relationships that already exist for her.'

49. 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,

'Alice is now in the loving care of her core family. She has her "de facto" mother, her step-sisters, her mother and occasionally her biological father. She is doing well at school. It is time to put the dangerous drama of the past behind her once-and-for-all. She must be allowed to simply settle down. She has all that she needs.'

50. 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.

51. 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 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.

52. 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.


53. 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:

(1) every case is fact specific;

(2) section 10(9) does not set out criteria which must be satisfied but factors to which the court must have regard;

(3) the factors set out in section 10(9) are not exhaustive;

(4) the court should take account of all the material features of the case;

(5) in particular, the court is entitled to consider the merits of the application and whether the applicant has an arguable case;

(6) the fact that an applicant has an arguable case is not necessarily sufficient to entitle him or her to be granted leave under section 10;

(7) in reaching its decision, the welfare of the child is relevant but is not the court's paramount consideration.

54. 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.

55. 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.

56. 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.

57. 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.

58. 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.

59. 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:

'A re-introduction of the relationship between Alice and Matthew needs to be sustainable and it is imperative that there are significant benefits to Alice in promoting [contact with Matthew] given the extensive number of adult relationships that already exist for her.'

60. 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.

61. 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.

62. 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.