EC-D & Anor v GH & Anor

In determining competing applications concerning a child, the child’s welfare is paramount and the court must evaluate the evidence holistically. A non-biological adult may properly be granted parental responsibility where sustained psychological parenting and involvement make that outcome beneficial for the child, despite parental conflict. Parental responsibility is not exercised by majority vote. A shared lives with order may recognise that a child has two homes where that reflects the child’s welfare. A proposed international trip to a non-Hague country requires assessment of the risk of non-return, the consequences if non-return occurs, and the effectiveness of safeguards. Restrictions on travel should remain proportionate and ordinarily subject to review.

The applicants, the child’s birth father and his husband, and the child’s mother made cross-applications concerning parental responsibility, living arrangements, the child’s name, travel to Country R, religious upbringing and schooling. The second applicant sought parental responsibility despite being neither the biological parent nor the primary carer. The mother opposed that application and sought permission to take the child to Country R, which is not party to the 1980 Hague Convention. The court also considered the appropriate division of the child’s time between the households and related welfare issues.

1. Welfare and parental responsibility. The child’s welfare was the paramount consideration, with regard to the factors in section 1(3) of the Children Act 1989. The court’s assessment was holistic. The second applicant had been treated as one of the child’s parents during the pregnancy, had attended antenatal classes, been present at the birth and provided sustained psychological parenting. Applying the approach described in Re G (Children) [2006] UKHL 43, he was more than a stepparent. Conflict between the adults was a factor, but did not outweigh the welfare benefits of his parental involvement. Parental responsibility was granted.
2. Child arrangements. The child had two homes. A shared lives with order naming the mother and both applicants best reflected his circumstances and welfare. The court ordered an immediate increase to four nights in fourteen for the applicants and five nights in fourteen when the child started school, with staged holiday arrangements. The arrangements were not intended to be permanently fixed.
3. Travel to Country R. Following Re A (Prohibited Steps Order) [2014] 1 FLR 63, the court considered the magnitude of the risk of breach, the consequences of breach and the security available through safeguards. The consequence of non-return would be catastrophic because orders of the court would not be effective in Country R. Although the risk of family pressure was insufficient on its own, there was a real risk that the mother might remain in Country R in reaction to the order granting the second applicant parental responsibility. A prohibited steps order therefore restricted travel outside the jurisdiction, save to Scotland, for two and a half years or until the child started school, whichever was later. The order was deliberately time-limited and reviewable.
4. Other welfare decisions. The court permitted the child’s exposure to the mother’s Muslim faith while not requiring the applicants to support or teach that religion. The child’s school was not finally determined; if a decision had to be made immediately, a school near the mother would have been preferred, subject to later consideration of educational quality, transport and future contact arrangements.