Case No. LS386-20

.” (emphasis by underlining added). He added: “The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with the grain of the legislation'.” 51.In applying this approach, I have been careful to temper my keenness to adopt a Convention compliant construction by what Lord Rodger said in the same case at §115: “In any given case, however, there may come a point where, standing back, the only proper conclusion is that the scale of what is proposed would go beyond any implication that could possibly be derived from reading the existing legislation in a way that was compatible with the Convention right in question. In that event, the boundary line will have been crossed and only Parliament can effect the necessary change.” 52.Taking the strong judicial steers from the authorities to which I have just alluded, I am satisfied that I should interpret the ACA 2002 in such a way as to give legal respect to the rights of Ms A, Ms B, Theo, and Emma to enjoy family life in its most complete form, through the possibility of securing that relationship legally by adoption. 53.Has family life actually been created on these facts? I do not propose to reproduce Munby J’s helpful distillation of the wide range of factual circumstances which have been construed as ‘family life’ in caselaw from his judgment in Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075 at §59 (though it repays re-reading), but it is useful to cite his summary at §72: “…such is the diversity of forms that the family takes in contemporary society that it is impossible to define, or even to describe at anything less than almost encyclopaedic length, what is meant by “family life” for the purposes of Article 8. The Strasbourg court, as I have said, has never sought to define what is meant by family life. More importantly for present purposes, and this is a point that requires emphasis, the Strasbourg court has never sought to identify any minimum requirements that must be shown if family life is to be held to exist. That is because there are none. In my judgment there is no single factor whose existence is crucial to the existence of family life, either in the abstract or even in the context of any particular type of family relationship”. 54.It is notable that in Kroon v The Netherlands (1994) 19 EHRR, cited by Sir James Munby P in Re X, the Strasbourg court accepted that family life existed between two parents and their children even though the parents had never married, did not cohabit, and lived in separate houses. The court observed: “32. … where the existence of a family tie with a child has been established, the State must act in manner calculated to enable that tie to be developed and legal safeguards must be established that render possible as from the moment of birth or as soon as practicable thereafter the child's integration in his family …”. 55.On the particular facts of this case – as I have highlighted them in particular from §7§15 above – it seems to me that ‘family life’ has been and is convincingly demonstrated. Ms A and Ms B have for some time been jointly committed to creating a family life with their children, as evidenced by the conception, birth and early upbringing of Theo, and the replicated arrangements in respect of Emma. I am satisfied that Ms A played an “equal role” in the care of Emma while the couple were together, and continues to play an equal role in the shared care regime which the parents have brought about for the children since their separation; I am satisfied that they see themselves as lifelong parents for these two children. As the adoption social worker has commented, and I accept, Ms A, Ms B and the children are a completely “integrated” and “close family unit”; Ms A and Ms B are truly ‘partners’ in parenting with a strong family ethic. 56.That all said, I feel that I must leave open the question whether the statutory requirement in section 51 ACA 2002 for the applicant to be living “as [a] partner” in “an enduring family arrangement” with the parent of the child would be satisfied by an arrangement which lacked some of the key characteristics which are present in relation to this family. If family life had not been so clearly demonstrated by effective co-parenting of an existing child of the family; if the care of the child(ren) in separated homes had not been so obviously ‘shared’ as the arrangements which obtain here; if the relationship of the adults as co-parents had not been shown to be as amicable as that which exists between Ms A and Ms B, the conclusion may have been different. 57.Mr Taylor raises an interesting point about discrimination, but given my conclusion on his other arguments, I do not find it necessary to decide the case by reference to the claim of discrimination. Conclusion 58.Drawing the threads together: i)When interpreting legislative provisions, the court must have regard to the underlying purpose of the specific requirement within the Act, and ensure the interpretation does not 'go against the grain' of the intentions of Parliament and creates a ‘sensible’ result; this can include some consideration of child welfare, but child welfare will not be paramount; ii)In interpreting the phrase “living as partners in an enduring family relationship” it is reasonable to have regard to the caselaw generated under section 54 HFEA 2008, given (a) the similar legal test; and (b) that the legal, personal, emotional, psychological, and social consequences of adoption orders and parental orders are so similar; iii)The issue of whether people are living as partners in an enduring family relationship is a question of fact and degree, and it is a matter for the court to consider in every case; iv)It is not necessary for the ‘partners’ to be sharing the same property in order to be living in a family relationship; what is required is an unambiguous intention to create and maintain family life and a factual matrix which is consistent with that intention; v)Section 144 ACA 2002 should be read in a way which gives effect to Article 8, i.e., which does not create unnecessary or disproportionate interference with the right to respect the family life of all involved; vi)There is no rule that requires that intimacy, conjugality, or co-habitation be a component of an enduring family relationship. These are not requirements for married applicants, nor are they requirements in relation to parental orders under the HFEA 2008 which requires applicants for that order to be “living as partners in an enduring family relationship.” vii)In the facts of this case, ‘family life’ exists between the Applicant, Ms A, and the child, Emma; a very notable aspect of that family life is the care and arrangements which Ms A and Ms B had previously made for Theo – much can be deduced about the relationships from this; viii)Integrated family relationships have continued for all four members of this family notwithstanding the separation of Ms A and Ms B; ix)The law permits me to conclude that Ms A and Ms B are living as partners in an enduring family relationship. 59.For the reasons set out above, on the particular facts of this case, I am persuaded that Ms A is entitled to bring the application for an adoption order in relation to Emma. Subject to my satisfaction on welfare grounds of the appropriateness of the order (which I will consider at a later hearing), the scene is set for Emma to have the same social and emotional advantages, and status, as Theo, whom she plainly regards as her brother. 60.That is my judgment. 1 This is the social worker’s word: reference the Annex A report – see §14 below. 2 Not her real name 3 Not his real name 4 Ms B is known as ‘Mama’. 5 Section 144(4) ACA 2002. 6 Which deals with time limits for the application.