A very modern family – The Case of Re A

Families come in all sorts of shapes and sizes. The recent case of Re A highlights the difficulties that the Family Court may encounter when dealing with family circumstances that are highly unusual.

The case concerns Alice, a 9 year old girl. Her mother was Rachel. Her father was David, a known sperm donor who lived abroad. At the time Alice was conceived, Rachel was in a civil partnership with Helen. Both Rachel and Helen had mental health issues. Helen also suffered from mobility issues and had two adult children of her own, one of whom (Susan) had her own physical and learning difficulties. Rachel and Helen separated in 2009. Rachel was detained under the Mental Health Act and so Alice went to live with Helen under a court order. Alice had lived with Helen since that point, although she maintained supervised contact with Rachel. Alice also had contact with David by way of social media and occasional visits.

In 2009, Helen started a relationship with Matthew, a female to male transsexual in the process of transitioning. Matthew also had mental health difficulties. During his relationship with Helen, Matthew played a role in caring for Alice. The relationship between Helen and Matthew ended in 2013. Matthew then entered into a new relationship with James. Matthew did maintain contact with Alice for around 16 months after his separation from Helen. Contact ceased in acrimonious circumstances. Following the cessation of contact, Matthew applied to the Family Court for permission to seek a child arrangements order, namely contact with Alice.

At the time of Matthew’s application, Alice had been diagnosed with autism spectrum disorder. She was also said to have experienced some gender confusion, spending a period of time identifying as a boy.

The issue before the Family Court was whether Matthew should be granted permission to proceed with his proposed application. Given the exceptionally unusual circumstances behind the application the Judge appointed a guardian for Alice to represent her in the proceedings. Matthew’s application was opposed by Rachel, Helen and David. Alice herself appeared to be aware of the proceedings but expressed no preference over their outcome.

The Judge heard that there were several factors that pointed towards granting permission for Matthew to proceed with his application. He had clearly played a role in Alice’s life, both before and after his separation from Helen. It was also argued that Matthew would not have required permission from the Family Court to proceed with his application, had he applied earlier. This was because he had lived with Alice for a period of 3 years. Matthew argued that he was essentially no different to any other step-parent and he could perform a role as a father-figure to Alice.

There were also a range of arguments that pointed entirely the other way. Alice was already engaged in relationships with a large number of adults and her guardian was concerned that any reintroduction of contact with Matthew would have to be both sustainable and of significant benefit to her. Rachel considered that Alice’s wellbeing and gender confusion issues had improved since David’s departure from her life. Helen was concerned that if permission was granted, Alice was at the risk of being introduced to conflict and stress.

The Judge faced a difficult task in weighing up the arguments from both sides. He was especially concerned at taking a global, holistic view of Alice’s circumstances when making a decision. The Judge noted that Helen’s health issues (and those of Susan) created considerable care needs. When combined with Alice’s autism and apparent gender confusion, the Judge was clear that if Matthew’s application proceeded, there was a clear risk to Alice’s welfare. He therefore refused permission for Matthew to proceed with his application.

It is worth remembering that for the majority of applications to the Family Court, parents and primary carers of children do not require permission to proceed (as Matthew did). However, grandparents and step-parents often will require permission to make applications. In many cases, that permission is granted. Re A is a reminder that having an arguable case is one factor that the Family Court will consider in such cases. However, simply having an arguable case is not always sufficient. The welfare of the child or children concerned is always a relevant consideration for the Family Court, In cases where there is a risk of litigation creating significant conflict and harm for the child or children concerned, the Family Court is entitled to err on the side of caution.

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