B (A Child by her Guardian), Re

In private-law child arrangements disputes, the child’s welfare remains paramount, regardless of the family’s structure or an adult’s status as a biological or legal parent. Family life is assessed by substance rather than form. A person who has played a significant parental role may therefore be relevant to the welfare assessment, but the label “psychological parent” does not determine the outcome. A parental responsibility order may recognise that role where the statutory conditions are met, but parental responsibility concerns responsibility for the child rather than adult rights or control over other carers. Orders must reflect the child’s present circumstances, wishes and welfare needs, including the practical effects of international relocation and delay.

The applicant had been the child’s co-parent in a same-sex relationship with the child’s biological mother. After the relationship ended, the mother moved with the child to Pakistan. The applicant’s applications for child arrangements orders and relief under the inherent jurisdiction were initially refused for want of jurisdiction. The Court of Appeal upheld that decision in [2015] EWCA Civ 886, but the Supreme Court overturned it in [2016] UKSC 4.

On the return to the Family Division, the central issues were the child’s present welfare, contact with the applicant, whether the applicant should have parental responsibility, whether she should be recognised as a psychological parent, and whether wardship or continuing court oversight was necessary.

1. Welfare and family structure. The child’s welfare was the paramount consideration under section 1 of the Children Act 1989, with the welfare checklist applied. Family life is a matter of substance, not form. The child’s early family life included the applicant, who had undertaken a substantial parental role. Parenthood had significance only insofar as it contributed to the child’s welfare.
2. Psychological parenthood. The court accepted that the applicant had played a parental role during the child’s early life. It was unnecessary to decide the disputed label “psychological parent”. The relevant question was the applicant’s past and future involvement and its effect on the child’s welfare. The passage of time meant that the relationship’s present significance had diminished, but it remained relevant to the child’s identity and future relationship with the applicant.
3. Present welfare assessment. The child was settled and integrated in Pakistan, was happy at home and school, and had established family and social connections there. Return to the United Kingdom would cause substantial disruption and hardship and was not in her best interests. Contact should proceed gradually, with indirect contact and direct contact approximately once a year, subject to practical and financial realities.
4. Parental responsibility. Because a child arrangements order for contact was made, the court could make a parental responsibility order under section 12(2A) of the Children Act 1989. The order was in the child’s best interests because it recognised the applicant’s significant parental role. It was limited: the applicant was not to approach the child’s school or medical practitioner for information. Parental responsibility was not a conferral of adult rights or control over the child or her carers.
5. Other orders. The case was to return to court in February 2018 for limited oversight, although the parties could agree that this was unnecessary. The application for wardship was refused because it was unnecessary in light of the child arrangements order and the parties’ developing agreement. The court would write to the child explaining the decision.

• Supreme Court — The Court of Appeal’s decision was overturned in [2016] UKSC 4, allowing the substantive welfare issues to proceed.
• Court of Appeal — The dismissal of the applicant’s applications for want of jurisdiction was upheld in [2015] EWCA Civ 886.
• High Court (Family Division) — The initial applications were refused on the basis that the child and her mother were no longer habitually resident in the United Kingdom.