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Children: Private Law Update: February 2013

Alex Verdan QC of 4 Paper Buildings considers three important recent judgments in Children private law proceedings

Alex Verdan QC of 4 Paper Buildings

In this review I will focus on recent judgments concerning the following topics:

Leave to apply for orders under section 8 Children Act 1989
In Re G (A Minor); Re Z (A Minor) [2012] EWHC 134 (Fam), Baker J considered applications by two men for permission to apply for orders under s. 8 Children Act 1989. In each case the application concerned a child conceived using sperm provided by the man, and born to a woman in a civil partnership.

In such circumstances and pursuant to the Human Fertilisation and Embryology Act 2008, legal parenthood is vested in the mother and her civil partner, and not the biological father, who needs to make an application for permission to apply for substantive orders.

The two male applicants, S and T, became friends with a woman, D who was in a relationship with another woman, E. S agreed to be the sperm donor, and E was to be the biological mother to F, and subsequently to G. D and E assert that there was an arrangement between the parties that: (1) the father would not have a parental title; (2) would not have parental responsibility; and (3) there would be no financial commitment. D and E asserted that S had no relationship with the child, despite regular contact taking place, approximately once per fortnight.

At the same point, X and Y, two female friends of D and E, wanted to start a family and T provided his sperm. X gave birth to Z. X and Y also asserted that there was an agreement in place that T would be known as the donor, and there would be no parental or financial involvement. However, following birth there was frequent contact between T and Z, approximately once per fortnight.

The parties' relationship deteriorated. S and T made applications for leave to apply for section 8 orders. Both applications were subsequently listed before Baker J.

The respondents, in opposing the applications, sought to rely upon public policy reasons. The Human Fertilisation and Embryology Act 2008 changed the law on donation to recognise lesbian parents as joint legal parents, expressly eliminating the legal status of the man who is the biological father. Prior to 2008 the applicants would have been entitled to apply for contact as of right. The respondents submitted that, in adopting the legislative approach, it was Parliament's clear intention to protect families from 'an invasion of privacy and infringement of parental responsibility' from donors such as the applicants. Therefore, in considering section 10(9) Children Act 1989 in conjunction with the provision of the 2008 Act, the application should be refused.

The applicants' response was that the importance of genetic parenthood is not extinguished by the removal of legal parenthood. Had Parliament intended a person in the position of the applicants to be entirely stripped of legal remedies, it would have expressly provided for such disqualification. The fact that the 2008 Act provides for a man, such as the applicants, to be treated differently in law as the parent of the child, does not mean he is excluded from making an application for permission for an order under s.8.

Moreover, the applicants submitted that a refusal for leave to apply would be an infringement of the applicants' article 6 and 8 human rights, especially where the mothers seek to expunge the father from the child's life.

In granting the applicants leave to make applications for contact orders in respect of G and Z, (but refusing S leave to apply for a residence order), Baker J accepted that S and T were not to be treated as parents of G and Z. The policy underpinning sections 42(1), 45(1) and 48(2) of the 2008 Act was to put lesbian couples and their children in exactly the same legal position as other types of parents and children. However, the granting of leave would not frustrate the legislative intention behind the 2008 Act, but rather reflect the importance of genetic and psychological parenthood; which is not automatically extinguished by the removal of the legal status of parenthood.

In deciding such leave applications, the court must always adopt a fact specific approach through careful scrutiny of the factors under s. 10(9). The most important factor in each of these applications was the connection each applicant was allowed by the respondents to form with the child.

Rule 22 of the Family Procedure Rules 2010
In Re B (A Child) [2012] EWCA Civ 1742, the Court of Appeal allowed an appeal by the mother against findings of fact made against her on the father's application for residence of a 5 year old child.

The local authority had concerns about the mother's partner and domestic violence, including an assault against another child. The Guardian recommended that provided the mother did not allow any contact between the child and her former partner, there should be a shared residence order.

The father instructed an enquiry agent who reported that the partner had attended at the house when the child was present. The Guardian recommended an immediate transfer of residence should the allegations be proved. The mother sought to call her former partner, the social worker, and the maternal grandmother to establish that the partner had not attend her property as alleged, and sought an adjournment in order to call those witnesses.

The trial judge refused the application for an adjournment, being concerned about further delay, and went onto make an interim residence order, finding that there had been contact between the partner and child.

The Court of Appeal, whilst acknowledging the wide discretion of the court to control the evidence pursuant to r. 22 FPR 2010, stipulated that there must be a limit. The judge had deprived himself of the necessary evidence to properly determine the issues. A fresh hearing before another judge was ordered.

Section 37 Children Act 1989
In Re K (Children) [2012] EWCA Civ 1549, the Court of Appeal considered the extent of the court's jurisdiction to make sequential s. 37 directions and interim care orders in private law proceedings, where the local authority had opposed the making of further interim orders.

Section 37 provides a jurisdictional bridge between private law proceedings under Part 2 of the Children Act, and the public law provision in Part 4. However, it is not for the court to decide whether to initiate public law proceedings but for the local authority.

MacFarlane LJ decided that the court did have jurisdiction to direct more than one s. 37 investigation, it being 'wholly artificial' to limit the court's ability to utilise the s. 37 jurisdiction to one shot in each case when private law proceedings may last for a significant period. Where there are circumstances sufficient to justify that a public law order may be appropriate, for a number of reasons, and at different stages during the course of proceedings, a section 37 direction would be merited.

However, in this instance the judge had exceeded his jurisdiction in making a further s. 37 direction and order pursuant to section 38. The judge had failed to spell out the full reasons and necessity for a further direction and order, when the local authority's considered view was against issuing care proceedings. The corollary that followed was that the orders made had delineated the role of the court from that of the local authority.

The Court of Appeal clarified the boundaries of the court's jurisdiction [45]:

'In each case and at each hearing there will be a line beyond which the court may not go in deploying the facility provided by s 37 under which an interim care order may be made. Whilst the position of the line will vary in accordance with the particular circumstances of the case, the existence of the line and the need for the court to be aware of it should not be in doubt.'

The appeal, made on the basis of judicial bias, was dismissed.