Case No. LS386-20

” – so as to permit one (Ms A) to apply for an adoption order in respect of a child born to the other (Ms B), while they were in a loving relationship? 2.This is the important question, arising in the context of an application brought under section 51(2) ACA 2002 (‘Adoption by One Person’), which falls for determination in these adoption proceedings. 3.On the particular facts of this case, where a cohesive, “integrated”1, family life has been created by Ms A and Ms B for the subject child (Emma2) and her older brother (Theo3) notwithstanding the end of their loving relationship, I feel able on balance to answer the question affirmatively. Ms B is Emma’s ‘parent’ in all senses of the word (genetic, gestational, psychological); there is no doubt on the evidence that Ms A is every bit as much her other psychological parent: see Re G [2006] at §39 below. 4.In dealing with this application, Ms A is unrepresented, as is Ms B; Ms B actively supports Ms A’s application. The Local Authority, which is represented by Mr Alex Taylor, argues strongly that the ACA 2002 should be interpreted in such a way as to enable Ms A’s application to proceed and supports the adoption of Emma by Ms A on welfare grounds. Mr George acts for Emma, on instructions from the Children’s Guardian; the Guardian expresses no view one way or another on the interpretation of the law, but is supportive of the application for adoption (if it can proceed) on welfare grounds. 5.I am very conscious that no party seeks to argue against the construction of the ACA 2002 advocated by Mr Taylor. I have nonetheless endeavoured to address the possible counter-arguments in the judgment which follows. Background facts 6.The outline background facts are these. 7.Between 2011 and 2020, Ms A and Ms B were in a fully committed, loving, and exclusive relationship. In that period, they decided to start a family. They agreed that Ms A should be the biological mother of their first-born child; through a process involving a sperm donor, Ms A became pregnant and in 2015 a son, Theo, was born. In January 2018, Ms B successfully applied to adopt Theo, and in this way, both Ms A and Ms B became in law and reality Theo’s parents. 8.Ms A and Ms B then decided to expand their family and have a second child. They chose the same sperm donor so that their children could be biologically related. On this occasion, it was agreed that Ms B would be biological mother, and that Ms A would adopt – a reversal of the previous arrangement. Ms B became pregnant, and in 2018, Emma was born. Emma’s actual given name has familial connections for both Ms A and Ms B. 9.Ms A’s evidence is that: “[Emma] was very much wanted by both myself and [Ms B]. We were both committed to her conception and have both played an equal role in her life from this time. I have been involved in all aspects of [Emma]’s care from birth, with the only exception being breastfeeding. This includes the sleepless nights, the hospital stays, teething, all her development leaps and her growth spurts. I continue to meet all of her needs, be those emotional, physical, behavioural and social… she calls me ‘mummy’4”. 10.Shortly after Emma’s first birthday (in the summer of 2019), the relationship of Ms A and Ms B came to an end; they fell out of love and they decided to separate. In January 2020, Ms B moved out of the home; the separation was mutually agreed and amicable. On separation, they agreed to implement a shared care arrangement for the children, and this indeed has been the case for the last 16 months. 11.Currently Theo and Emma spend exactly half their time with Ms A (Wednesday, Friday and Saturday nights, and alternate Sunday nights), and half their time with Ms B (Monday, Tuesday and Thursday nights, and alternate Sunday nights). Ms A and Ms B have a very good relationship with each other; they are in almost daily contact with each other, they often socialise together; they plan birthday and Christmas celebrations for the children in a way which enables them to spend the day together. They help each other out with practical tasks, and on the evidence which I have seen, they flexibly operate this shared care regime to the considerable benefit of both children. 12.I am told that Theo and Emma, who are of course related genetically through their father, are inseparable; they have what Ms A described as a “fabulous” relationship with each other. Significantly Emma views both Ms A and Ms B as her parents, and they regard her as their daughter; all the evidence which I have seen points to the fact that Emma is a much-loved member of this family. Ms B says this: “[Ms A] and myself made the decision to have children. Although we are not in a relationship, our parenting and friendship and caring relationship is united, and [we] unconditionally love both of our children as a family. Although we are not living together we parent our children together as separated parents would. [Ms A] has the most loving, caring, and strong relationship with both children and are both treated the same. [Emma] and [Theo] are lucky to have such a wonderful inspirational parent…. … I have adopted [Theo] and I feel [Emma] should be no different. I want the same for [Emma]; she shouldn’t feel any different as [Theo]. In the upbringing of both children it is incredibly important that we have this formalised, as this is what we have both wanted – from deciding to have children that we have a family together and that [Emma] and [Theo] remain together and both children have a place in both our families”. 13.In June 2020 (i.e., after the end of the relationship of Ms A and Ms B), Ms A formed another relationship, with Ms C. This is a loving and devoted relationship, but they do not actually live together; Ms C, who lives about a half-hour’s drive from Ms A, has children aged 7 and 11 who are in school local to her home, and she is for that reason currently loath to move. Equally, Ms A does not wish to disrupt the shared care arrangements for Theo and Emma. In the autumn of 2020 Ms A and Ms C decided to start their own family, though this has not yet come to pass. I am advised that Ms C and Ms B “get on with each other” and there have been social events at which both families have been together. 14.In November 2020, Ms A applied to adopt Emma. 15.An Annex A report has been prepared; it contains the following important passages: “[Ms B] is completely supportive of the plan for [Emma] to be adopted by [Ms A], this has always been the plan, and [Ms B] clearly sees this as being very much in [Emma’s] best interests. [Ms B] stated that [Emma] is entirely integrated into the family of [Ms A]…. They are a close family unit and enjoy spending time together as a family … [Ms B] reported that she has little contact with her [wider] family except for her father but has a close relationship with [Ms A’s]. All of the family members expressed their unwavering support of this adoption…”. The report concludes: “I am satisfied that they are a close family unit and despite the change in relationship status, remain partners in parenting and will continue to co-parent the children. I believe they are prioritising the children’s well-being and have worked out a coherent and realistic plan where the children will be cared for together across to family homes. … [Emma] is completely integrated into the family of [Ms A]. This is the only family she has ever known, and she is very much loved. … … Although the couple are no longer in a romantic relationship I consider that they continue to have an enduring family relationship as they maintain a strong family ethic, they are working closely together, co-parenting both children as a team and have consistently considered the children’s welfare as paramount. I believe they will strive to maintain a solid relationship so as to meet the needs of both children. Having met with both parents independently I believe that they share a common goal and vision as to how this will be achieved.” The statutory regime 16.Section 46 of the ACA 2002 (‘Adoption orders’) provides that: “An adoption order is an order made by the Court on an application under section 50 or 51 giving parental responsibility for a child to the adopters or adopter”. 17.Section 49 of the ACA 2002 (‘Applications for adoption’) provides that: “An application for an adoption order may be made by — (a) a couple, or (b) one person, but only if it is made under section 50 or 51 and one of the following conditions is met”. The conditions referred to above pertain to the domicile and habitual residence of the applicant(s) and the age of the subject child. 18.Applications for adoption by one person are provided for in section 51 ACA 2002(‘Adoption by one person’). That section opens with some qualifying criteria (minimum age, and status). Section 51(2) ACA 2002 then materially provides that: “An adoption order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent of the person to be adopted.” Who is a ‘partner’ for this purpose? Section 144(7) ACA 2002 (‘General Interpretation’) provides that: “For the purposes of this Act, a person is the partner of a child’s parent if the person and the parent are a couple but the person is not the child’s parent.” How should we understand the term ‘couple’ in these circumstances? Section 144(4) ACA 2002 provides that: “In this Act, a couple means – (a) a married couple, or (aa) two people who are civil partners of each other, or (b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.” Section 144(5) ACA 2002 makes clear that partners in an enduring family relationship cannot be a person and his/her parent, grandparent, sister, brother, aunt, or uncle. The arguments19.Mr Taylor argues that Ms A is entitled to pursue this adoption application because she is still a ‘partner’ of Ms B in the sense of being a co-parent, and is still a ‘couple’ with her “in an enduring family relationship” which is created and consolidated by their active shared co-parenting of Theo (and now Emma). I must confess that when the issue was first presented to me, I was far from convinced that the ACA 2002 could or should yield this construction. 20.Mr Taylor submits that there are essentially three interlinking routes by which the court can conclude that Ms A’s situation falls within the letter and spirit of the legislation, to enable this adoption application to proceed. 21.First, he argues that Ms A and Ms B continue to enjoy an ‘enduring family relationship5’ as parents, in both law and in fact, which has been created through their historic, and ongoing, joint parenting of Theo. Ms A and Ms B are also ‘living as partners’ in the sense that they participate in, and co-operate with, a fully integrated shared care arrangement in which the time for their children is split equally; they also plan and enjoy many activities together as a ‘family’ of four, including birthday celebrations, days out, and family meals. He argues, with some force, that the incorporation of the word ‘family’ in the statutory phrase is crucial; ‘family’ usually denotes a relationship beyond a ‘couple’ which often includes children or others linked by kinship to a person or couple. He argues that had section 144(4) simply defined a couple as “two people living as partners in an enduring relationship” then there might not be as much scope to argue that a shared commitment to parenting a subject child creates such a relationship or that a shared and enduring commitment to a sibling does so. 22.To support his contention that it is entirely justifiable to establish family relationships through someone else, he referred me to section 5 and schedule 1 to the Interpretation Act 1978 for its definition of “any relationship between two persons” which itself references section 1 of the Family Law Reform Act 1987 which provides that: “(1) In this Act and enactments passed and instruments made after the coming into force of this section, references (however expressed) to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father and mother of either of them, or the father and mother of any person through whom the relationship is deduced, have or had been married to each other at any time” (emphasis by underlining added). 23.He contends that this definition materially can permit the court to ‘deduce’ Ms A’s and Ms B’s ongoing ‘relationship’ through a third person, namely Theo; he goes on to argue that through Theo the court can deduce that this relationship is an “enduring family relationship”. 24.Secondly, he argues that the language and structure of ACA 2002 is sufficiently adaptable (my word not his) as to allow me to interpret it in such a way as to fit the needs and circumstances of family life in 2021. Moreover, the court should so interpret it so as to serve, rather than deny, the best interests of this child (Emma) and children generally; this after all is the essential ethos of the ACA 2002. He references the clear view of the professionals (the social worker and Guardian) that it is likely to be in the interests of Emma that she be adopted by Ms A, and afforded the same legal status visa-vis Ms A and Ms B as her sibling, Theo. 25.He drew my attention, by analogy to the current situation on the facts of this case, to the position of a sole applicant under section 51(3)(b) and section 51(3A)(b) ACA 2002, and argues that if, for instance, Ms A had been at one time married or the civil partner of Ms B but at the time of the application had “separated” and they were “living apart”, and where that “separation is likely to be permanent”, there would be no bar on Ms A making the application. Indeed, he argues (correctly in my view) it would not have affected her ability to apply for an order if, having separated in those circumstances, Ms A was at the time of the application in a committed relationship with Ms C, or indeed another person. 26.He supported this argument by reference to the decision of Hedley J in Re T and M (Adoption) [2010] EWHC 964 (Fam); [2011] 1 FLR 1487, a decision founded on section 50 ACA 2002 (‘Adoption by a couple’). In his judgment, Hedley J considered specifically the phrase “living as partners in an enduring family relationship” and said this: “These words are no doubt chosen so as not to require the residence of both in the same property. That is not surprising as historically many a parent has had to work abroad whilst the family remained at home without in anyway imperilling an enduring family relationship. Nor is that unusual today with people having to move jobs often at short notice. What is required is: first, an unambiguous intention to create and maintain family life, and secondly, a factual matrix consistent with that intention. That is clearly a question of fact and degree in each case” (§16) (emphasis by underlining added). He further cited Re CC (Adoption Application: Separated Applicants) [2015] 2 FLR 281 where the court (Moylan J, as he then was) was again concerned with a joint application under section 50 ACA 2002 by a married couple. He referred to this authority to demonstrate that the fact that the applicant couple had separated in that case was not regarded as relevant to the question of the court’s jurisdiction to make the order sought. Mr Taylor pointed out that there is no requirement in the ACA 2002 that a couple’s marriage be subsisting at the time of an application. He rightly submits in my judgement that the state of a marriage is a relevant consideration under section 50 ACA 2002 as to whether the order should be made, not whether it can be made. 27.Mr Taylor then looked across at the caselaw generated under the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’), arguing that further analogy can be drawn with how the court has approached parental order applications, where proof that the applicants must be (if not married or civil partners) “living as partners in an enduring family relationship” (section 54(2)(c) HFEA 2008) is similarly required. He argued that given the broad and indeed liberal way in which many aspects of section 54 have been interpreted over the years (i.e., in this and other respects) I should have no real difficulty in finding that “living as partners in an enduring family relationship” can exist even when the adults are maintaining two households. 28.Section 54(2) HFEA 2008 reads: “The applicants must be – (a)husband and wife, (b)civil partners of each other, or (c)two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.” I found it instructive to consider a number of authorities (some of which I was referred to, some of which I was not) which have considered this phrase “living as partners in an enduring family relationship”, and other key phrases in section 54 of the HFEA 2008, and I discuss them below, taking them in chronological order. 29.First, although I was not referred to it, while preparing this judgment I considered, Re X (A Child), (Surrogacy: Time Limit) [2015] 1 FLR 349 [2014] EWHC 3135 (Fam), [2015] Fam 186, in which Sir James Munby P held that where a child split his time between the two homes of separated commissioning parents, he could still be said to be living with both his parents. He said this at §67: “X had his "home" with the commissioning parents, with both of them, albeit that they lived in separate houses. He plainly did not have his home with anyone else. His living arrangements were split between the commissioning father and the commissioning mother. It can fairly be said that that he lived with them.” In an earlier section of the judgment, §52, Sir James Munby P had laid the groundwork for interpreting the statute in this way: “The starting point is clear and remains essentially unchanged from that identified by Lord Penzance in Howard v Bodington (1877) 2 PD 203 and most recently re-stated by Sir Stanley Burnton in Newbold and others v Coal Authority [2013] EWCA Civ 584, [2014] 1 WLR 1288. I