A Court of Appeal decision last week ruled that a lesbian couple bringing up a two-year old boy must allow the father a role. It was an important judgment in the landscape of ‘alternative families’ which are increasingly commonplace today.
Family law, especially where it concerns same sex relationships, has been developing apace over the last decade. The Adoption and Children Act 2002 permits adoption by a same sex couple and the Civil Partnerships Act 2004 enables a same sex couple to enter into a civil partnership, giving them rights, upon the breakdown of the relationship, very similar to those of a divorcing couple. The Government is also now consulting on possible future changes to the law to permit gay couples to marry which may, in turn, lead to more alternative family units as a result.
Hand in hand with statutory change often comes the need for the Courts to give guidance as to how such changes will work in practice as in the Court of Appeal case Re M.
The case concerned three homosexual parties and how their parental roles should interact concerning their child, M. B was M’s natural mother who was in a long term lesbian relationship with her partner, C. A was the natural father and in fact married B to try and placate her family which was opposed to her relationship with C. The parties were old friends and all very successful professionals in their respective fields. It was acknowledged that discussions between the three parties prior to M’s conception had led to an understanding. A and B never lived with one another and it was intended that M would live with B and C. A would be welcomed and acknowledged but his relationship with M would be purely secondary to that of B and C, the mothers.
After baby M’s arrival, however, disagreements followed in terms of access and the extent of A’s relationship with the child. A and B respectively made applications to the Court.
A’s argument in the Court of Appeal was that his role as the natural father had been confined and that the normal developmental path of contact for the absent parent should be a steady increase in frequency and duration to staying contact (in other words overnight contact) and beyond that, to holiday contact. B and C argued that the child’s welfare would be enhanced if they were able to maintain their ‘nuclear’ family and that their decisions concerning M should be respected and supported.
The Court of Appeal said that A’s involvement in the creation of M and his commitment to him from birth suggested that he might be seeking to offer a relationship of considerable value. ‘It is generally accepted that a child gains by having two parents. It does not follow from that that the addition of a third is necessarily disadvantageous.’ In stressing what an important but difficult case this was, Lord Justice Thorpe went on to say ‘human emotions are powerful and inconstant.’
While he could understand that B and C wanted to create a ‘nuclear family completely intact and free from fracture resulting from contact with the third parent’ he went on to say ‘such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created.’ The Appeal Court went on to restate perhaps the most fundamental principle of family law which is ‘that the child’s welfare shall be the Court’s paramount consideration in determining issues such as residence, contact and parental responsibility.’
One further interesting aspect of this case was that the Court agreed that the three adults concerned had reached an agreement prior to M’s conception as to the respective roles they would each fulfil after M was born. Yet the Court said that whilst it made sense to try and spell out arrangements for the care of the child in as much detail as possible in advance, they could not be held to ‘a dry legal contract’. Arrangements for children cannot be cast in stone and as the Court continued ‘biology, human nature and the hand of fate are liable to undermine it and to confound their expectations. Circumstances change and adjustments must be made.’
Finally, the Court of Appeal stated that it did not approve of the practice which has grown up of referring to the father in these circumstances as a ‘donor’. The role of the father must depend upon what is in the child’s best interests at each stage of its childhood and adolescence. As Lady Justice Black put it when allowing the Re M case permission to appeal, ‘As with any other child, the father / child relationship may turn out to be close and fulfilling for both sides, it may be no more than nominal, or it may be something in between’.
Three parents, alternative families and modern family arrangements can be complicated and are in many ways still ‘new territory’ in family law terms. But as the Re M case shows the touchstone is and must be that the welfare of the child is paramount and not the interests of the adults.
Jane Keir is head of family law at Kingsley Napley