FC v MC

In deciding whether to grant parental responsibility to a person who does not have it automatically, the court must treat the child’s welfare as paramount. The principal considerations are the applicant’s commitment to the child, the attachment between them, and the applicant’s motivation. These considerations apply equally to a woman who presents as a second female parent. Earlier agreements or intentions may evidence commitment and the relationship, but are not determinative; current commitment and attachment generally carry greater weight. Parental responsibility may be refused where it is likely to be misused. A person named in a shared-care or lives-with order obtains parental responsibility while that provision remains in force.

FC applied for parental responsibility in respect of D, a five-year-old child, and for arrangements reflecting her relationship with him. MC, D’s biological and legal mother, opposed parental responsibility. FC and MC had been in a same-sex relationship and had planned D’s conception and upbringing together, but FC was not named on the birth certificate and did not qualify automatically for parental responsibility under the Children Act 1989.

The parties’ relationship had broken down, followed by a period without contact. Contact was later restored and had become positive and regular. The central issue was whether granting FC parental responsibility, together with a shared-care or lives-with order, was in D’s best interests.

1. Order made. The court held that it was in D’s best interests for FC to have parental responsibility and made a joint lives-with/shared-care order. Parental responsibility followed from the order under section 12(2) of the Children Act 1989. Contact was to build up to two nights every second weekend and two nights during the week on the alternate week.
2. Applicable criteria. The court adopted the three touchstone considerations identified in Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151: the applicant’s commitment, the degree of attachment between applicant and child, and the applicant’s motivation. There was no relevant distinction between a father and a woman claiming to stand in the position of a second female parent.
3. Welfare and parental status. There is no general rule that parental responsibility should or should not be granted. The only governing principle is the paramountcy of the child’s welfare, as stated in A v B and C (Lesbian Co-Parents: Role of Father) [2012] EWCA Civ 285. An agreement or understanding at conception or birth is not determinative, although it may evidence commitment and the nature of the relationship. Current commitment and attachment are generally more significant.
4. Motivation and misuse. Parental responsibility may be refused if the applicant is likely to misuse it to undermine or control the existing parent. The status conferred by parental responsibility is important, but is not a separate stand-alone or presumptive factor, applying the reasoning in Re M (Parental Responsibility Order) [2013] EWCA Civ 969.
5. Application. FC had shown sustained emotional and practical commitment, a strong attachment with D, and a constructive motivation. The court found no evidence of illwill or a desire to thwart MC. D regarded FC as a parent and benefited from their relationship. The court therefore concluded that formal recognition of FC’s role would serve D’s welfare.

First-instance decision. No earlier appellate decision is stated in the judgment.