C (A Child: Parental Order & Child Arrangements Order)

The statutory requirement that a child’s home be with parental-order applicants may be interpreted broadly and purposively. It is not confined to cases in which the applicants live together under one roof. Where separated applicants jointly provide care and make important decisions for the child, the requirement may be satisfied consistently with Convention rights.

An application to reopen findings of fact requires a principled balancing of finality, delay, resources, the importance of establishing the truth, the significance of the findings and the quality of the new evidence. Above all, there must be solid grounds for believing that a rehearing may produce a different result.

The court determined welfare and parental-order issues concerning a child born through surrogacy. The child’s biological father and emotional, psychological and social mother were separated and lived in different households. They jointly applied for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008.

The mother also sought to reopen findings made in an earlier fact-finding judgment, including findings concerning the father’s knowledge of a second surrogacy arrangement, alleged assault and alleged controlling behaviour. The court had to decide whether the statutory home requirement was satisfied, whether the earlier findings should be reopened, and what welfare orders should be made pending expert advice concerning the child’s relationship with his half-siblings.

1. The court made a parental order in favour of both parents. Although they were separated and lived in separate households, the child had his home with both of them for the purposes of section 54(4)(a) of the Human Fertilisation and Embryology Act 2008. The term home required a wide and purposive interpretation. The parents had both provided care and made important decisions for the child, and de facto family life had been established. A parental order would provide substantial lifelong benefits and secure the child’s legal relationship with both parents.
2. The court applied the approach in Re E (Children: Reopening of Findings of Fact) [2020] 1 FLR 162. There is no strict issue estoppel in children proceedings, but reopening requires a reasoned exercise of discretion. The court must balance finality, scarce resources, delay, the importance of truth, the significance of the findings and the quality and relevance of the further evidence. Above all, there must be solid grounds for believing that a rehearing may result in a different finding. The application was wholly without merit and was dismissed.
3. The court applied the balance of probabilities as the burden and standard of proof for the further findings sought against the father. No such findings were made.
4. The child’s welfare was the paramount consideration under section 1(1) of the Children Act 1989, and the welfare checklist was considered. The court concluded that the child should live with his father because he was more likely to support a positive relationship with the mother. The mother was granted weekly supervised-style visiting contact in the father’s home town and weekly indirect contact.
5. The local authority was discharged as intervenor. Permission was granted for an expert to advise on how the child should learn of, meet and develop relationships with his half-siblings. Final determination of restrictions on the mother’s parental responsibility was deferred pending that report.

Not stated in the judgment.