Case No. LS386-20

, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: NonPatrial) [1998] INLR 424, 429, referred to as "the psychological relationship of parent and child with all its farreaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible”. 30. It is also notable that parental orders were granted to the commissioning parents at the conclusion of the litigation known as Re A & B (C & D) No.1 [2015] EWHC 1059 (Fam) and Re A & B (C & D) No.2 [2015] EWHC 2080 (Fam), even though they were living apart by the time of the hearing following an acrimonious separation; in that case, the children did not even have overnight contact/stays with one of the commissioning parents / applicants as his accommodation was not suitable. Theis J felt able to read the HFEA 2008 purposively to find that the children's 'home' was 'with' the applicants; she was influenced in her conclusion by the fact that this was in the best interests of the children, and that: “… although the parents have separated, they remain married. The evidence indicates that despite the differences between them they both remain committed to the children and ensuring their needs are met”, and “… to not construe it in such a way could have detrimental long-term consequences for the children and the applicants, which is precisely what the section sets out to prevent” (see §67-76 of the No.2 decision). The fact that the commissioning parents were legally married in that case is noted, but what appears to have been of more consequence to the ultimate decision was (a) that the parents were committed to the children and (b) the consequences for the family of not making the order. 31.In support of the purposive construction of the statute. Mr George drew my attention to the judgment of Russell J in F and M (Children) (Thai Surrogacy) (Enduring family relationships) [2016] EWHC 1594 (Fam) in which she referred to the Parliamentary debates which preceded the enactment of the HFEA 2008 and the Ministerial acknowledgement that the decision of whether a relationship is an ‘enduring family relationship’ would be a matter of fact for the courts (§29). Mr George further underlined for me the importance of treating family legislation as dynamic, pointing to Russell J’s observation that: “… the families in which children live and are brought up are increasingly diverse and often more fluid than in the past; the enactment of the HFEA 2008 came about in recognition of this change” (§16). 32.In F and M (Children) (above) Russell J had also referenced, among other authorities in this area, A v P (Surrogacy: Parental order: Death of Applicant) [2011] EWHC 1738 (Fam) in which the HFEA 2008 was quite significantly ‘read down’, so as to enable an order to be made to the sole surviving commissioning parent (one of the commissioning parents having died during the legal proceedings). 33.Mr George further referred me to Re N [2019] EWFC 21. On the facts of this case the applicants for a parental order (who were not apparently married or in a civil partnership) had separated by the time of the hearing (after making the application). Theis J said this: “[37] The aim of section 54 is to allow an order to be made which has a transformative effect on the legal relationship between the child and the applicants. The article 8 rights of the applicants and the child are engaged. N has lived with the applicants all her life and is biologically related to K. The effect of not making an order will be an interference with that family life in that their factual relationship will not be recognised by law, there will be no legal relationship between N and the applicants, she would be denied the social and emotional benefits of recognition of that relationship and would not have the legal reality that matches the day to day reality. [38]When considering the provisions in section 54(2) in that purposive light it is clear the applicants were in an enduring family relationship at the time they made their application. Section 54(2) requires that the applicants must be two persons who are living as partners in an enduring family relationship, which they were when they made their application. In my judgment, in the absence of any other express time requirement, that requirement is satisfied in this case. [39]The requirement in section 54 (4) (a) is also met as the evidence demonstrates that even though the applicants have been living in separate homes since August, N has always been with one of them since then and as a result her home has been with them, albeit divided between two properties”. 34.I then considered Re X (Parental Order: Death of Intended Parent Prior to Birth) [2020] EWFC 39, [2020] 2 FLR 1326, where I noted in particular what Theis J said at §93-95; this is a lengthy passage of that judgment, which is not reproduced here, but which is of importance and should be read with this judgment. Theis J’s conclusion in that case was that the HFEA 2008 could, and indeed should, again be read down in order to permit the parental order to be made; to do otherwise would be incompatible with the “underlying thrust of the legislation being construed” and the words sought to be implied “go with the grain of the legislation”. She concluded: “The HFEA 2008 sought to provide a comprehensive legal framework for those undertaking assisted conception, with the aim of securing the rights of any child born as a result. That policy and legislative aim remains intact if the order sought in this case is made.” 35.Mr Taylor finally cited Re A (a child: surrogacy: section 54 criteria) [2020] EWHC 1426 (Fam); [2021] 1 FLR 357 in which Keehan J held that the fact that the applicants, the biological mother and father of the child who was born as the result of a surrogacy arrangement, were separated and living in separate homes was not fatal to an application for a parental order given that they were committed to playing key roles in the child’s life, and that section 54(2)(c) (“two persons who are living as partners in an enduring family relationship” see §28 above) should be read in a purposive and ECHR complaint manner. 36.Mr Taylor’s third main argument was founded on the ECHR Convention Rights of the family, Ms A and Emma in particular, notably Article 8: “the right to respect for [their] private and family life”. He submitted that, so far as is possible, the ACA 2002 should be read or given effect to in a manner which is compatible with those convention rights: section 3 Human Rights Act 1998. 37.He argued that in relation to Theo and Emma, their Article 8 rights are engaged because the legal status of their shared parent, Ms A, is key to their private and family life. He contended that if Ms A were to be ruled ineligible to apply to adopt Emma, the State would be interfering with that right by denying an opportunity for the siblings to have the same legal parents. This would create an asymmetry in the status of their parents which amounts to an interference in family life. He argues that it is meaningful for the children to have a legal parent, rather than just having a person who exercises parental responsibility 38.He went further in arguing that the court has a duty under Article 14 ECHR not to discriminate against Ms A on the ground of her status as a single person, unmarried and not in a civil partnership. He pointed to the fact that marriage is a ‘status’ and can found the basis of a claim of discrimination (see Lord Hoffman at §6-8 in Re P [2008] UKHL 38 / [2008] 2 FLR 1084); he argued that a lawfully married couple who are permanently separated, or civil partners who are permanently separated, would not be prevented from making an adoption application as they do not need to show that they are in an ‘enduring family relationship’ (see again section 51(3) and section 51(3A) above). His argument is that having different eligibility criteria as between married couples (or couples in a civil partnership) and unmarried couples should not create discrimination in terms of the effect of such criteria where the best interests of a child are concerned; he submits that an unmarried Ms A should be just as eligible to have a court consider her substantive application for an adoption order as much as a married Ms A would be. The Court should therefore read section 144(4)(b) ACA 2002 in a manner which ensures that there is no such discriminatory effect. 39.Finally, and although this was a point not raised in argument, I consider it important to reference in this judgment the speech of Baroness Hale in in Re G (Children) [2006] 2 FLR 629 at §33 to which I have already referred:“There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child's welfare, depending upon the circumstances of the particular case.” As indicated above, while Ms A is not the gestational or genetic parent of Emma, she is a psychological parent to Emma as the evidence (summarised above) indisputably reflects: “§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." Conclusion 40.As earlier indicated (§19), when this application was first presented to me, I was sceptical about its prospects. My uncertainty was located in the statutory language itself, and in particular the words/phrases: “the partner”, “a couple”, “living as partners” in sections 51(2), 144(7) and 144(4) respectively. I was struck by the use of the definite article in section 51(2) suggesting that the applicant would have to be the partner of a parent of the person to be adopted, not a partner; this suggested some degree of exclusivity of relationship between the applicant for an adoption order and the parent of the subject child. Of course, in this case Ms A is currently the partner of Ms C; she is a former partner of Ms B. The word ‘couple’ denoted a close personal (similar to conjugal) relationship, and ‘living as partners’ suggested ‘living together as partners’ – though notably (indeed significantly) the word ‘together’ is not in the ACA 2002. 41.Moreover, I note that there is a requirement that the applicant is the partner at the time when the order is made rather than at the time the application is made; section 50(1) ACA 2002 omits such a requirement. An application brought under section 51(2) ACA 2002 appears deliberately to establish this hurdle, and requires some scrutiny as to the applicant and parents’ relationship, not within the context of consideration of the section 1(4) welfare criteria, but as a pre-requisite to an application being permitted to proceed further by the Court. 42.However, having heard argument, and for the reasons which I set out below, I have been persuaded that this application should be permitted to proceed. I say so for the following reasons. 43.First, I am satisfied that the ACA 2002 should be construed in such a way as to achieve a ‘sensible’ result, having regard to, and in the light of, the statutory subject matter, the background, the purpose of the legislative test, its importance, its relation to the general object intended to be secured by the Act, and the actual or possible impact of an outcome if I were to reject my preferred this construction (see Sir James Munby P in Re X at §52 which is cited at §29 above). 44.In this regard, I must deal with two discrete points which arose in argument: (a) whether Emma’s welfare should be viewed as paramount in my determination (‘the welfare factor’), and (b) whether it matters greatly that the applicant has never been married or a civil partner of the parent of the child (‘the marital status of the applicant’). 45.(a) The welfare factor: The ACA 2002 has as its essential ethos the promotion of the best interests of children through adoption; it seems to me that I can and should take into account Emma’s best interests when reviewing all of the factors listed in §43 above and reaching my view on this issue. However, I do not agree with Mr Taylor when he argued that in deciding on whether this application can be permitted to proceed, I can and should place Emma’s interests as paramount in my consideration. Section 1 ACA 2002 (which includes the paramountcy principle at section 1(2)) applies “whenever a court… is coming to a decision relating to the adoption of a child”. This is not such a decision; it is a decision as to whether the application to adopt should be entertained by the court at all. That said, I feel that I can and should have in consideration the welfare of Emma as one of the factors in the case, and I can confirm that it would indeed be in her interests that Ms A be given the opportunity to adopt her. 46.(b) The marital status of the applicant. In this regard, I accept Mr Taylor’s submission that the fact that Ms A and Ms B have never married or been civil partners should not be a ‘disqualifying’ factor. He points out that had Ms A been married or a civil partner of Ms B, but at the time of the application had “separated” and been “… living apart”, in circumstances in which “the separation is likely to be permanent”, she would not have been debarred from making the application (see section 51(3) / section 51(3A) ACA 2002). Indeed, it would not even have mattered if, having separated in those circumstances, she was at the time of the application in a committed relationship with another person (i.e., Ms C). So I accept Mr Taylor’ argument that, when looking at the overall purpose of the ACA 2002 Ms A should not be in a worse position because she was never married or in a civil partnership with Ms B – even though they were for some time in an exclusive and committed relationship – where what is ultimately at stake is at a best interests’ determination about the legal status of the child Emma. 47.Thus, as the legislation does not require any enduring conjugal relationship between a legally married applicant and his/her spouse (or between civil partners), it would be unreasonable in my judgement for the situation to be different for an applicant who happened never to have married or entered into a civil partnership. As Hedley J held in Re T and M (Adoption) (see §26 above), what is required is 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. 48.As Mr Taylor rightly points out there are very many couples who ‘live apart together’, who do not live under the same roof, but are in an enduring family relationship. Indeed, Ms A and Ms C are a case in point – in a committed relationship, as partners, with each adult enjoying a step-parental role in respect of the children of the other, but for reasons entirely driven by their individual wishes to prioritise schooling arrangements for their own children over a wish to cohabit, actually not living together. 49.I turn next to my second main reason for my decision, linked as it is to the first. I am persuaded that a long line of distinguished judges of the Family Division and the Court of Appeal have been willing liberally to read down the equivalent phrase in the HFEA 2008 (“living as partners in an enduring family relationship”); while there may be some distinguishing factual features between the parental order cases cited above and this case, as Sir James Munby P made clear in Re X (citation above) adoption orders and parental orders share the common characteristics of extending far beyond the merely legal, incorporating “the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences” (see again §29 above). In this regard, as Theis J observed in Re N, the effect of the order is “transformative”, and I consider that what she said at §37 to §39 of her judgment (which I have reproduced at §33 above) of direct relevance to these facts. 50.Thirdly, just as Sir James Munby P in Re X and Theis J in Re N relied heavily on Article 8 considerations to support the outcomes which they reached, so do I. I feel empowered to do so having regard to what Lord Nicholls said in his speech in the House of Lords decision of Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] AC 557. He gave the court very considerable latitude in the way it could interpret legislation in order to give effect to Convention rights “[32] From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this.