E (Adoption by One Person): Stretching meaning to breaking point?
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I recall back in 2014 my eyebrow ascending somewhat upon being told by our esteemed former President that the words "the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born" did not actually mean that the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.
Now I have a sense of déjà vu as Mr Justice Cobb tells us in his judgment in E (Adoption by One Person) that the words "living as partners in an enduring family relationship" do not, in fact, mean living as partners in an enduring family relationship.
Before I retire to a darkened room to contemplate the meaning of
words life, I will leave you with this short explanation, beginning with the basic facts and law:
1. The case concerned Ms A and Ms B who, between 2011 and 2020, were in a fully committed, loving, and exclusive relationship.
2. In that period, they decided to start a family. Ms A was the biological mother of their first child, Theo, who was subsequently adopted by Ms B. Ms B then gave birth to their second child, Emma, but Ms A and Ms B separated before she could be adopted by Ms A.
3. Ms A now applies for an adoption order, but the ACA 2002 states that: "An adoption order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent of the person to be adopted." The Act also states that: "For the purposes of this Act, a person is the partner of a child's parent if the person and the parent are a couple but the person is not the child's parent." Finally, the Act tells us that: "In this Act, a couple means – (a) a married couple, or (aa) two people who are civil partners of each other, or (b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship."
Now, call me old-fashioned, but I have always been one to interpret words and phrases by reference to their true meaning, and the true meaning of "an enduring family relationship" does not to me quite seem to describe a couple who have separated because their relationship has ended. The problem, in a nutshell, is that 'ended' is effectively the opposite of 'enduring'.
Not so, said Cobb J, who concluded as follows:
"i) When interpreting legislative provisions, the court must have regard to the underlying purpose of the specific requirement within the Act, and ensure the interpretation does not 'go against the grain' of the intentions of Parliament and creates a 'sensible' result; this can include some consideration of child welfare, but child welfare will not be paramount;
ii) In interpreting the phrase "living as partners in an enduring family relationship" it is reasonable to have regard to the caselaw generated under section 54 HFEA 2008 [including the judgment of Munby P referred to above], given (a) the similar legal test; and (b) that the legal, personal, emotional, psychological, and social consequences of adoption orders and parental orders are so similar;
iii) The issue of whether people are living as partners in an enduring family relationship is a question of fact and degree, and it is a matter for the court to consider in every case;
iv) It is not necessary for the 'partners' to be sharing the same property in order to be living in a family relationship; what is required is an unambiguous intention to create and maintain family life and a factual matrix which is consistent with that intention;
v) Section 144 ACA 2002 [the interpretation section] should be read in a way which gives effect to Article 8, i.e., which does not create unnecessary or disproportionate interference with the right to respect the family life of all involved;
vi) There is no rule that requires that intimacy, conjugality, or co-habitation be a component of an enduring family relationship. These are not requirements for married applicants, nor are they requirements in relation to parental orders under the HFEA 2008 which requires applicants for that order to be "living as partners in an enduring family relationship."
vii) In the facts of this case, 'family life' exists between the Applicant, Ms A, and the child, Emma; a very notable aspect of that family life is the care and arrangements which Ms A and Ms B had previously made for Theo – much can be deduced about the relationships from this;
viii) Integrated family relationships have continued for all four members of this family notwithstanding the separation of Ms A and Ms B;
ix) The law permits me to conclude that Ms A and Ms B are living as partners in an enduring family relationship."
Accordingly, Cobb J held that Ms A is entitled to bring the application for an adoption order in relation to Emma.
[OK, before I receive a barrage of complaints, I admit that this decision, like the earlier one of Munby P, was, of course, the correct one for the family involved. In the end it must be right here that family trumps semantics. Although quite where that leaves those who draft our statutes, I don't know.]