Same Sex Couple Contact Dispute
Date posted: 18 April 2017
Patricia Beckett, a Partner in our Family Department reviews this interesting case concerning a child arrangements dispute, where one of the parties had relocated to Pakistan.
Re B (A child by her guardian)  EWHC 388 (Fam)
This much litigated case concerned a couple (R and J) who were in a same-sex relationship for 7 years. In 2007, J had Intra-uterine insemination and became pregnant with B. The couple co-parented until their separation in 2011. B continued to see R until 2014 when J lawfully moved with B to Pakistan. B was aged 8 at the date of this hearing.
R applied for a child arrangements order and for relief under the inherent jurisdiction. After the child moved to Pakistan, B only had limited telephone contact with R.
At first instance Justice Hogg, refused the application on the basis that the court did not have jurisdiction. The court of appeal upheld that decision (reported as Re B (A child)(habitual residence)(Inherent Jurisdiction)  EWCA Civ 886, but J appealed to the Supreme Court (reported as Re B (A child)  UKSC 4) and the Court of appeal decision was overturned.
Justice Russell heard the case. The child’s guardian recommended a) that B remain with J in Pakistan; b) but that a child arrangements order be made for direct contact once a year with R plus Skype and telephone contact; c) B should have a parental responsibility order with a limitation of the exercise of that parental responsibility; and d) that the case should return to court as it needed some oversight. The guardian was neutral on the Wardship issue, but supported a finding that R was a ‘psychological parent’ to the child.
On day 2 of the trial J decided not to pursue her application for B to return to this jurisdiction, but she did pursue contact. She asked for the case to return to court in 9 months’ time for review. She also sought for B to be made a Ward of court, and for a declaration as to her being a `psychological parent’ of B, and to be granted parental responsibility.
R agreed to the contact sought but opposed all other applications.
Justice Russell considered the welfare checklist and s2A of the Children Act 1989, which states the court is to presume a parent will further the child’s welfare, unless the contrary is demonstrated. She considered Re G (Shared Residence Order: Biological mother of donor egg) ) which considered cases regarding expanded boundaries of legal parenthood, including same sex couples. The governing principle being the child’s welfare is paramount. ‘Psychological parentage is also considered in that case.
The Judge agreed the child should remain in Pakistan. She agreed with the Guardian and ordered contact. She also made a parental responsibility order but limited its exercise (J must not contact the child school or medical practitioner – due to the possibility of causing distress, embarrassment and social stigma in a country where same-sex relationships are not as willingly accepted). She agreed the court needed to retain some oversight of the case, but rejected the assertion that the child should be a Ward of court. The case is due to return to court in 2018. The Judge also commented that in cases such as these it was right that the child be separately represented “…to avoid the focus being on the dispute between the parents and/or care-givers and their ‘rights’.”