Case No. ZC22P00521

in circumstances where the applicants were in a relatively new relationship, had made the joint decision to have children but had not lived together, caused mainly by their commitments to children from previous relationships. In those circumstances the court considered this requirement was met, noting at [41]‘On the information the court has it is clear the applicants are in a committed relationship, their intention is to remain in that relationship and as soon as circumstances permit, to live together full time. They spend such time as they are able to together, remain in regular contact when they are not together and are obviously committed to each other and X.’21.Ms Gamble also submits there is no requirement for the applicants to be in an intimate relationship, or not to be married to anyone else. The court does and should have the capacity to recognise new and diverse family structures.22.Having considered the evidence in this case it is clear the decision to have a child and the arrangements outlined above was very much a joint decision derived from the strength and nature of the relationship between Mr Y and Mr X founded on their wish to co-parent. This is what they have done since G was born, with the support and involvement of Mrs X when required. They are known to G as ‘Daddy’ and ‘Papa’. Their actions both before and since G’s birth have been very much a partnership, albeit they are largely living in separate households which G easily and readily moves between.23.The evidence demonstrates that Mr Y and Mr X have a ‘family relationship’. They have known each other a number of years, initially the relationship was intimate, more recently it has settled into a committed and loving relationship. Mr X describes it as follows ‘Our relationship was initially an intimate one but is now largely platonic although we love and support each other very much’. Mr Y describes it in the following way ‘We continue to love, support and respect one another and our dreams. When I mentioned to [Mr X] that I wanted to have a child, he immediately said that he would do everything to help make that a reality and he has been there for every step of the way, not only financially but emotionally. He is a fantastic parent to [G] and is everything I imagined he would be’. In his report Mr Verity notes that from a welfare perspective the applicants could be considered a ‘family unit despite not having had the relationship history of family life together that is common to more conventional applications. [G] calls [Mr Y] “Daddy” and [Mr X] “Papa” (and his wife has a familiar name based on her first name), and they have been consistent and particular in ensuring they co-parent, which I expect [G] will have sensed, and so are likely to continue to do so. [G] sense of family life will be consolidated’.24.As to whether the applicants’ relationship could be described as ‘enduring’ it has been in existence for 15 years, albeit they have not lived together during that time and Mr X has remained living with his wife during the majority of that time. Although unconventional, it is a long established loving and committed relationship.25.Having considered the terms of s54 (2) (c), the need to be alert not to read any requirement that is not there into the primary legislation and that the question of whether a relationship meets the statutory criteria is a question of fact to be considered in the light of the circumstances in each case, I am satisfied in this case the evidence establishes this criteria is met. To an outsider the nature of the applicants’ relationship may be described as ‘unusual’ or ‘unconventional’ but the court must remain focussed on the statutory requirements. In my judgment, the applicants are ‘living as partners in an enduring family relationship’. They are in a long term committed relationship with each other that has been in existence for a number of years. Whilst it is right Mr X has remained married and living with his wife, the existence of that relationship has not detracted from the evidence the court has of the way Mr Y and Mr X operate as committed and loving partners, particularly in relation to the way they have made the decision to have a child, the steps they have taken to do that and what they have done following G’s birth. Mr X is arguably in two relationships that could meet this definition but there is no requirement for any relationship within this definition to be exclusive, although it is a very relevant factor the court needs to take into account in assessing the evidence. I agree with Mr Verity that the applicants are very much a family unit even though they have not had the relationship history of family life together that is common to more conventional situations. They do not live together, the statute does not require that, but they are living as partners in a committed and loving relationship that has been established and maintained over a number of years. Its early focus was their relationship, more recently it has been their joint decision to have a child and the steps they have taken together to achieve that, what they have done following G’s birth and their plans for their relationship going forward, with G at the centre. Although unusual, this relationship established by Mr Y and Mr X co-exists with Mr and Mrs X’s marriage in the way described in the evidence. Mrs X is wholly supportive of the relationships that exist.Timing of the application26.S 54 (3) requires the application to be made within six months of the child’s birth. The application in this case was issued three years after G’s birth. In their statements the applicants describe that they only recently became aware of the need for a parental order when they sought legal advice. Once they became aware of the need to make an application it was promptly made. For the reasons set out by Sir James Munby in Re X (A child)(Parental Order: Time Limit) [2014] EWHC 3135 it is possible for the court to consider applications made after the six month limit. In this case there will be no prejudice to any third party if the application is permitted to proceed. If it isn’t permitted there will be significant prejudice to G and the applicants, as they would be denied the opportunity to secure an order that has a fundamental impact on the child’s identity, namely who he is and who his parents are. There is no suggestion in this case of any abuse of public policy and there was no untoward delay once the applicants became aware such an application was required.27.The application should be permitted to proceed.Child’s home with the applicants28.S 54 (4) (a) requires ‘At the time of the application and of the making of the order (a) the child’s home must be with the applicants…’. There have been a number of cases that have considered situations where a child was not living with both the applicants in one home either at the date of the making of the application or the date of the order, or both. Ms Gamble has very helpfully summarised them as follows:(1)Following the applicants separating - In Re X (a child) (surrogacy; time limit) [2014] EWHC 3135 the intended parents were separated and living in separate homes. Munby P ruled that [paragraph 67]: “X had his home with the commissioning parents, with both of them, albeit they lived in separate houses. He plainly did not have his home with anyone else.” This rationale was subsequently followed in Re A and B (No. 2 – parental order) [2015] EWHC 2080 (Fam) and in K v L (2019) EWFC 21.(2)Where the applicants were in a relationship but had never lived in the same home - In Re DM and LK [2016] EWHC 270 (Fam) a parental order was made in favour of applicants who had never co-habited (although were planning to do so); in