Case No. LS386-20

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. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3