T v B

For financial relief under Schedule 1 to the Children Act 1989, “parent” means a legal parent, subject to the statutory extensions in paragraph 16. The question is one of legal status, not a fact-sensitive welfare assessment.

A person may be a social and psychological parent, or may acquire parental responsibility through a residence order, without becoming a legal parent. Extending Schedule 1 liability to such persons is a matter for Parliament. Article 8 of the European Convention on Human Rights does not determine the jurisdictional question.

The applicant sought financial relief for the benefit of a child under section 15 and Schedule 1 to the Children Act 1989. The respondent and applicant had been female partners, had jointly pursued assisted conception, and had both acted as parents after the child’s birth. Following separation, the respondent obtained a shared residence order and parental responsibility.

The preliminary issue was whether the respondent was a “parent” against whom a financial order could be made under Schedule 1, despite not being the child’s biological or statutory legal parent and not having entered a civil partnership with the applicant.

1. The respondent was not a parent for Schedule 1 purposes. Although she was a social and psychological parent, Schedule 1 confined liability for financial orders to legal parents, subject to the express extension in paragraph 16. The issue was one of statutory interpretation and status, not a discretionary welfare-informed determination (paras [54]-[57], [67]).
2. The court relied on the statutory treatment of parenthood in the Children Act 1989 and legislation governing assisted reproduction. The approach in J v J (A Minor: Property Transfer) [1993] 2 FLR 56 remained applicable. The decisions in Re A (Joint Residence: Parental Responsibility) [2008] 2 FLR 1593 and J v C (Void Marriage: Status of Children) [2006] 2 FLR 1098 supported determining parenthood by reference to legal status and applicable statutory definitions.
3. Parental responsibility is distinct from parenthood. Obtaining a shared residence order gave the respondent parental responsibility, but did not thereby make her a parent. Otherwise persons such as grandparents with residence orders could become parents for Schedule 1 purposes (para [63]). The reasoning in M v C and Calderdale Metropolitan Borough Council [1993] 1 FLR 505 and Re B (Parentage) [1996] 2 FLR 15 was applied.
4. Estoppel could not create legal parenthood where the statutory scheme did not do so. Any broader liability for social or psychological parents had to be created by legislation, since a discretionary extension would lack sufficient legal certainty (paras [64]-[65], [67]). Article 8 of the European Convention on Human Rights was irrelevant to the jurisdiction to make financial orders (para [66]).