ZE23P01539 - [2025] EWHC 1403 (Fam)

I have heard oral evidence from the parties, including Ms Callaghan for AB. I will set out my general impressions of them here.

The first applicant presented as a pleasant man who was rather taken aback as to what had happened. He had thought that the respondent was part of the LGBT community and that she shared his values. He was admiring of her cultural heritage but had not understood when he agreed to father a child with her that she was (or would become) more actively Muslim and would (as he saw it) re-engage with a family that disapproved of homosexuality. He was easily able to praise the respondent as a mother but was perplexed and distressed by what he saw as a rejection of him and the second applicant.

I was told that the applicants had raised with the legal aid authorities that there had been no domestic abuse, and questions were put to the first applicant about this. He acknowledged that it would have made matters more difficult for the respondent if legal aid were withdrawn but said that he had taken the point because the allegation of domestic abuse was wrong.

The second applicant also presented as a pleasant man. He did however give the impression of having a harder core than the first. He did appear to have some real insight into what the respondent might have felt, but he was less prepared to just gloss over what had upset him. He was whole heartedly supportive of what the respondent had achieved with AB, but he was clearly outraged that she had said that she was the victim of domestic abuse (and so secured legal aid) and that he had inappropriately touched AB.

The second applicant did acknowledge that the respondent had struggled at first with AB and that he and the first applicant had not been able to answer her requests for help, and he was able to see that might have had an effect on the difficulties they were now facing.

The second applicant did not accept that he was at first thought of as more of an uncle than a father. When it was pointed out that it was said that he ‘clocked out’ from AB when he was in Country R, he answered convincingly that that was because it was too painful being away from him. I note here (albeit I was taken to it in cross examination of the respondent and by Ms Cooper in her position statement) that following on from the WhatsApp messages between the first applicant and the respondent where there is the reference to the second applicant having ‘clocked out’, and in which the first applicant says that people are talking about AB being away in Country R, the respondent says:

He responded with striking clarity to a question as to the impact of him not being granted a parental responsibility order by saying that other than from a legal point of view it would make no difference, AB was part of his life, and he would love and be responsible for him whatever happened.

The combined impression that the applicants gave me was that they had not entered into the parenting arrangements with any grasp as to how dramatic the impact of having a child would be. When the respondent found her life turned upside down by having a child, they did not upturn their own lives as much as she needed to make things work for her. On the other hand, something else they had not predicted is the fact that over time they fell in love with AB such that now they are desperate to be with him, look after him and bear responsibility for him. Further, they struggle to cope with the fact that the respondent has, as they see it, moved away from the LGBT community and is now a more observant Muslim then she had been when they met. Indeed, it was accepted by the respondent that she would drink alcohol and eat pork when they first met but would not do so now.

The respondent impressed me as a thoughtful witness with firm views. She was careful in her use of language. I think she took the oath to tell the truth that she had sworn on the Koran seriously, and was careful to tell the strict truth but on occasions her presentation could mislead a listener who was not paying attention, for instance when describing the fake marriage, she said that her sisters had met F, so must have known he was not an Imam, but she did not say, until pressed, that she believed her sisters thought that the marriage was nonetheless a valid Muslim marriage.

The respondent was able to give heartfelt praise to the applicants. She said that she owed a great debt to the second applicant because he had during her pregnancy been very supportive. She reminded me that he attended NCT classes with her. She was able to understand after questioning how what she had done might have looked like to the applicants. Having accepted that she was reassured by social services that there was no good reason to believe that there had been inappropriate touching of AB, she did offer, for the first time, an apology to the second applicant as to the pain that it might have caused him to have been accused of such behaviour. Indeed, she accepted that she could enter into mediation with both applicants. (Some mediation between her and the first applicant had started shortly before the hearing.)

The respondent’s particular evidence on the various issues between the parties I will set out below. I do however note that I consider that the respondent is for the most part trying to make decisions that she considers to be in AB’s interest. As I will explore below, I do not think that she gets the balance right on each occasion but save for one point I do consider she is genuinely trying to do the right thing. That one point is her approach to the second applicant and particularly his application for parental responsibility. She is, I consider, emotionally fixed in relation to that. She is a woman of resolution, and he has a hard core. I am not at all surprised that their interaction has caused sparks. I remind myself that I should not underestimate the impact on her of these points of conflict – and think in particular of the fear that she clearly felt during and following the incident in the park. The first applicant, by contrast, is more able to glide over points of disagreement to oil their relationship. I find, however that her difficulty with the second applicant goes beyond these points of conflict; he is a clear marker of part of the respondent’s past that she wants to step away from. It was very obvious that she would avoid referring to the second applicant and only refer to the first, as for instance in her religion plan (to which I will refer below) which talks only of what the first applicant can or cannot do. And, it was notable that she, and Ms James on her behalf, reminded me on a number of occasions that the first applicant was married to a woman, K, when the parties met despite there being no issue but that the first applicant and K were separated, and the respondent agreed, under cross examination, that every time she met the first applicant the second applicant was with him as his partner, including the occasion of insemination.

Ms Callaghan gave professional evidence focussed on what she considered to be AB’s best interest. It is evidence which came under attack from Ms James, but those attacks are best considered in relation to the arguments set out below. Ms Callaghan did not change her recommendations orally from those she expressed in writing. I have no doubt, contrary to the tenor of Ms James’ submissions, that Ms Callaghan was entirely focussed on AB’s best interest, and I make clear that I see no reason to consider her more empathetic to the applicants than the respondent. As I will set out, I do differ from Ms Callaghan’s conclusions in some respects but that is no criticism of her professional evidence; it is me doing my job, her having done hers.