ML & Anor v RW & Anor

In an intentionally created family arrangement, the court should identify the parties’ actual agreed parenting roles rather than assume that the arrangement resembles a conventional separated-parent family. Principal and secondary parenting may provide a useful framework where one couple undertook the two-parent, day-to-day care and the other retained a genuine, though secondary, parental role.

The welfare of the children takes precedence over the adults’ asserted rights. Where adults cannot agree workable arrangements, the court may impose contact arrangements that reflect the children’s welfare and the parties’ proper roles. Those arrangements remain default provisions which the adults may vary by written agreement.

The applicants were the biological father of two girls and his partner. The respondents were the girls’ mother and her civil partner. The children had been conceived through IVF with the agreement and cooperation of all four adults, who initially intended that all would have a parenting role.

After several years of substantially harmonious relationships, serious disputes developed about the adults’ respective roles and contact. The older child had withdrawn from contact and both children were suffering from the conflict. The court was required to determine the applicants’ past and future paternal role, the respondents’ role as principal parents, and appropriate contact arrangements.

1. Parenting roles. The relationships were uniquely structured and should not be assessed by borrowing concepts from traditional separated families. The evidence established that the respondents were the principal parents, providing the children’s two-parent, day-to-day care, while the applicants retained a genuine parental role in a secondary capacity. That role included identity, the male component of parenting and benign involvement.
2. Parental responsibility. The first applicant shared parental responsibility with the respondents. Day-to-day decisions were for the respondents, but the first applicant was entitled to participate in major matters including health, elective treatment, education, moves of home and other major events.
3. Welfare and contact. The pressing needs of the children prevailed over the adults’ rights. Since the adults could not agree, the court imposed a staged contact regime, beginning with visiting contact and progressing to overnight contact. The arrangements were intended to reflect the parties’ proper roles and to protect the children from continuing conflict.
4. Variation and procedure. The parties remained free to vary the arrangements by written agreement. In default of agreement, the court’s provisions were binding. The residence application was struck out as an obstruction to contact. The court confirmed that it could make an order under the Act without a formal application, pursuant to s.10(1)(b), and listed the matter for a future welfare hearing.