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Family Law

The leading authority on all aspects of family law

02 FEB 2015

JB v KS [2015] EWHC 180 (Fam)

JB v KS [2015] EWHC 180 (Fam)
(Family Division, Hayden J, 29 January 2015)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 2 FLR 1180]

Private law children – Parental responsibility – Child conceived by agreement between homosexual woman and heterosexual man – Home donation of sperm – Whether the father should be granted a parental responsibility order

The full judgment is available below

The father of a child conceived as the result of an agreement between a homosexual woman and a heterosexual man was granted a parental responsibility order.

The mother and father met on the website CoParentMatch.com with the intention of having a child together. The mother was homosexual and the father was a passive man who found it difficult to meet women and to develop relationships. In 2010 the mother fell pregnant and gave birth to a healthy son.

The father began to present himself and the mother to others as a couple in a conventional heterosexual relationship and introduced the mother to his parents as his girlfriend. Contact arrangements were agreed but ultimately broke down due to the mother’s concerns about the father behaving as if they were in a relationship. The father applied for a parental responsibility order.

The guardian supported the application as it merely conferred legal recognition of the status of the father in the child’s life. Unsupervised contact was agreed. It was intended for the father’s name to go on the birth certificate which was automatic following the making of a declaration of parentage consequent to the process of ‘home donation’ and as such the birth certificate would be re-registered with the Registrar General.

The father’s application for a parental responsibility order was allowed. Each case had to be determined on its own facts and the courts had not been able to offer guidance as to how to approach welfare issues such as parental responsibility and contact in cases such as this.

While the mother and father had made clear agreements about the child’s future prior to conception and birth other matters such as parental responsibility had not been addressed. It would be entirely wrong to approach the case as if the child had been born into a loving heterosexual relationship. However, there was a respectful, intimate and enduring relationship as opposed to a brief encounter. Furthermore, it was unlikely that the father would use his parental responsibility in any way to undermine the mother. They shared the same objectives and he deferred to her judgment. In this instance there were key compelling features which pointed towards making the order sought.



Neutral Citation Number: [2015] EWHC 180 (Fam)

Case No. BY13P00226

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand London WC2A 2LL

Date: Thursday 29th January 2015

Before:

MR. JUSTICE HAYDEN
(In Private)

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B E T W E E N :

JB
Applicant

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KS
Respondent

- and –

E (a child acting by his Children’s Gaurdian)

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MR. J. VATER QC and MISS DAVEY appeared on behalf of the Applicant.
MR. H. KHAN appeared on behalf of the Respondent.
MISS S. ANNING appeared on behalf of the Guardian.

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J U D G M E N T

Approved

MR. JUSTICE HAYDEN:


[1]  This case has a lengthy litigation history. That is always sad where the welfare of a child is involved. It is particularly so where two highly committed and instinctively skilful parents, who otherwise have an enormous amount to offer a child, fallout and misdirect their energies into the litigation process. On this, the second day of the hearing, the parties have been able to agree on some very significant issues. Firstly, on the principle of contact. Secondly, on the arrangements for contact until the child starts school. Thirdly, on the expansion of contact from supervised to unsupervised. Fourthly, on the regime of contact in school holidays in the future. This is a framework which may see this child throughout the remainder of his minority without the parties having to come back to litigate in a court room. That they should achieve such a significant step forward in such a short time in court is, I have no doubt, due in part to the fact that they have had extremely experienced counsel assisting them. Mr. Vater, Queen’s Counsel, and Miss Davey on behalf of the father and Mr. Khan on behalf of the mother.

[2]  But valuable though that assistance has doubtless been, it is, in my judgment, the parties themselves who have moved forward during the course of this hearing. Quite why it is they have been able to do so at this stage and not earlier in the process is difficult for me to understand, save that I have experienced over the years that the preparation for, and the experience of, a contested hearing in the High Court when both parties are finally allowed to speak and to be listened to by the court as well as by each other can sometimes prove to be a significantly cathartic process.

[3]  As I have observed in exchanges with Mr. Vater, what has struck me most as I have listened to each of the parties give evidence is that, notwithstanding that they have at times expressed some dramatically different perspectives on what has happened in the past, views in which each had become entrenched, they have nonetheless been able to relate their history in a way where each has shown a powerful and almost palpable core respect for the other. Too often these cases are fraught with rancour. In my judgment, the reason why that core respect has survived the pressure of this process lies in the quite remarkable journey that these two wayfarers have been on together. I will set out the key landmarks of that journey below, because they are ultimately foundations upon which today’s orders are secured. At this stage, it is only necessary for me to observe that after much effort and disappointment ultimately the mother gave birth to a son, E, who is now aged four. He will be anonymised in this judgment and I do not, in order to protect his privacy for the future, propose to set out his date of birth either.

[4]  I should like to begin the substance of my judgment not with an account of the background history to which I will turn shortly, or, indeed, of the legal framework, the conventional starting points for a judgment. Rather, I should like to begin by describing something of what I have learnt about E himself. I do so to return him to his proper place in this process, namely at the centre of it, but also to signal to the parents that which they have both, in their different ways and, despite their strengths, at times sadly forgotten. This case is not about them, not about their past, not about their relationship, it is all about E, his needs, his future happiness and the realisation of his potential.

[5]  E has not for various reasons met with his Guardian. There is, depressingly, little about him in the papers in the case. Notwithstanding that, his personality has forced its way through into this court room. He is a strikingly bright little boy, full of fun, full of mischief and he has the confidence which is often vouchsafed to much wanted children delivered to their parents late in life, when hope has started to fade. He enjoys football and sports and a vast range of other activities. He has also shown himself to be full of emotional intelligence and empathy.

[6]  As the history will relate, contact has taken place in the past with the father, JB, without either parent finding it to be necessary to tell E why he was going to the contact centre or with whom he was meeting. They perpetrated a deception, on their own child. I am sure when they look back at that now they must wonder how they could have gone so wrong.

[7]   E was given an account of his conception by his mother, but at aged only 2 ½ he had the emotional intelligence to work things out for himself. He recognised that JB was his Dad. Why should he not do? He lives in the same world as the rest of us. He sees other dads. He had no doubt even by that stage begun to wonder where his was and he found an answer. JB, I am entirely satisfied, did not for a moment even begin to press his case. He did not want to announce himself to E as his father, but E could not have failed to respond to the intensity of his father’s love and his inherent, unthinking and instinctive communication of it. That is how he made the discovery, as the mother herself recognises.

[8]  It is also clear that E has a perfectly stable, secure and happy life with his mother. Her aspirations for him know no bounds. She delights both in his personality, the gift of his presence and the extent of the opportunities that life holds for him. In this she is joined with equal vigour and force by the father. He recognises that the mother is certainly more educated than he is, probably he regards her as more intelligent. Certainly, she is a more assertive and organised individual than he is. Father does not for a moment doubt the significant contribution that the mother has to make to E’s life and, to my mind, he is glad of it.

[9]  Thus far, it might seem as if I am describing any ordinary, (if there is such a thing,) heterosexual couple and child, but I am not. This couple met on a website: CoParentMatch.com. The mother describes herself as a “gay lady”. The father, I note, uses that phrase , and I conclude out of respect to her, describes her in exactly that way, both in his evidence and in his statements. She told me that she had long wanted a child. The mother’s desire to be a parent was a burning biological imperative an almost physical need. Certainly, the mother had thought about being a mother for many years prior to joining CoParentMatch.com. She had read very widely about the options available to her as a single lesbian parent. She brought to her own analysis not only the benefit of her professional experience as a senior nurse, but also a great deal of research and reading.

[10]  The father, JB, is, in many ways almost the polar opposite personality to the mother. He is an essentially passive man, in my assessment, who told me with disarming candour that he found it difficult to meet women and to develop relationships and that he had not been in a relationship for at least a decade. He told me that he saw some opportunity to parent a child opened up by this particular website. It seems to me, listening to him give evidence, that, like so many interactions by people on the internet, part of his aspirations were grounded in reality whilst others were mere fantasy.

[11]  The couple found each other. They agreed to meet. I need only say, in order to preserve anonymity, that they were both living in the south of England at the time they met. On their very first meeting they spent several hours together at a coffee shop. They both recalled having quite a number of cups of coffee together at that first meeting. On some level they plainly felt that they could identify in each other a basis for moving forward with their respective aspirations. Moreover, I am entirely satisfied that in recognition of each other’s strengths there was flexibility in both their objectives. This was, in my judgment, not an arrangement that ever crystallised into a strict and tightly controlled plan. That, in my view, was its strength, though also, as it proved, its weakness.

[12]  The story that followed reveals determination on behalf of both of these adults. Mr. Khan, who appears on behalf of the mother, has talked of her ‘relationship’ with the father and how it grew over the years. He is right to say so, for a relationship there undoubtedly was, equally certainly, it grew and developed. How could it not do? For month after month, year after year, even when the mother relocated to a different part of the country, the father, at the relevant time of the month, travelled to the mother’s home and was able to provide semen with which she was able to try and impregnate herself. It often involved the father staying overnight. The couple were courteous to each other. They spoke to each other respectfully. They shared meals together. They watched television together in the mother’s sitting room. For this, I suspect, essentially lonely man, the comfort of that arrangement took hold in his thoughts and he began to dream of some idealised family unit in which he was a part. When, as certainly happened on one occasion, he alluded to such a future together, the mother showed no hesitation in refocusing his thoughts on a rather more prosaic reality. There was, sadly, in February 2009 a miscarriage. I cannot begin to imagine the pain that would have caused this mother. I am quite clear that JB would have been entirely incapable of consoling her. I suspect nobody would, man or woman, at that stage. She thought, and certainly until this hearing still thinks, that he was unfeeling at that time, but having heard from both of them, there was only one person in the world who came close to mourning the loss of that potential life more than the mother and that was the father. His grief, as he told me about it, was alive and manifestly genuine. That he could not reach or console the mother in those circumstances is no failing on his part, I find him to be, as I have mentioned, a gentle and kind man. It has occurred to me that E gets his energy, enthusiasm and assertiveness from his mother, but his emotional intelligence from his father. I am pretty sure that the mother would not accept that speculative analysis.

[13]  In any event though, by this stage the mother was in her early 40s. There were in addition obstacles of geography; these were two people from entirely different lives with different sexualities but they persevered to see if they could produce a baby. Following the miscarriage, throughout the summer of 2009 into 2010 there were careful, planned, minutely orchestrated efforts to get the mother pregnant, almost all of which involved the father staying over regularly at the mother’s home. There was in these arrangements, continuing as they did over years, an intimacy as well as a relentless commitment. They were rewarded in April 2010 when the mother fell pregnant again.

[14]  The lawyers have described the pregnancy and the subsequent birth in this case as a ‘miracle’, it was certainly against remarkable odds. I have not the slightest doubt that both parents were delighted by the pregnancy. I have been told that the father attended at least one antenatal appointment, with the mother’s encouragement, in which he saw the ultrasound scan. I have been told too that he attended a one day new parenting course at the St. Mary’s Hospital in Paddington on the mother’s recommendation. The details, it seems to me, matter not, for what is beyond doubt is that this was a delight bordering upon euphoria in both of the adults. That communicates itself both through the papers and in their oral evidence.

[15]  E was born and, as I have described, was a healthy, lusty little baby, full of vigour and a sheer joy to both his parents. At or around the time of E’s birth there is no doubt at all in my mind that fact and fantasy blurred in the father’s mind. The mother should, if I may say so, be more understanding and more forgiving about this period. The end of the journey for her was to have the pleasure and the privilege of caring for E night and day. The father simply went home. That he embellished the facts and that he had to tell somebody something of what he was experiencing seems to me to be only human. He was proud of his son. He needed to share that pride. He presented to the world a conventional heterosexual relationship. I do not doubt that he did so in the most superficial of terms, but that single lie begot others when questions followed and so it was that this mother found herself in the situation, which I have described as being as of almost comedic proportions, visiting her “in laws” and being passed off as the father’s girlfriend. I struggle to see how that could, if I may say so, ever have been a convincing performance by either. It enraged the mother. It communicated to her finally that the father had moved not only away from the flexible structure of what they had contemplated for the future, but, to her mind, and in my judgment rightly, he had moved for a while bag and baggage into his own fantasy world.

[16]  The father promised to rectify the situation, but it was difficult for him to extricate himself and I believe that underlying the mother’s concerns about the development of contact is a fear that the father will reconstruct a reality which is other than the truth. He must guard against doing so. For him not to do so, in my view, requires communication between the adults not as an optional extra, but as an essential, because the circumstances of E’s birth will need to be unfolded to him slowly and revisited in the light of his developing age and understanding. He has a story which is really rather wonderful. He should not be deprived of the truth of it and the extent of his parents commitment to him. He was and is a very much wanted and loved little boy by both his parents.

[17]  Sadly, although contact was initially agreed, it broke down. There were communications between the parties’ respective solicitors, a cessation of contact for something approaching two years. I have absolutely no doubt that contrary to the mother’s analysis of this period, that did not in any way show a lack of commitment to this child by the father. I dismiss this as cheap forensic opportunism. What this period really revealed was, I find, a profound determination by the father to keep the case out of the court room and a real effort to move forward by compromise, cooperation, negotiation. It did not succeed. His patience was not rewarded and the case came to court. At court the mother agreed to an extensive regime of contact. She has told me that she felt pressurised into consenting to such an agreement by the father’s solicitor, the Cafcass officer and, indeed, the District Judge.

[18]  Counsel who prepared the written arguments for this case on behalf of Mother (not Mr. Khan) asserted that the mother felt that she had been forced into what is termed a “heterosexual paradigm”. I have given that thought repeated and careful consideration, but I have come to the clear view that the mother’s ambivalence towards the contact the District Judge ordered (by consent) really reflects the ambivalence that she has always felt about contact. In her evidence she told me that she was very aware that there were less personal options for acquiring semen donation in organisations regulated by the HFEA in which she would not have to run the gauntlet of potential future disagreements. She told me that she wanted to identify a father who would be a ‘real’ and ‘physical presence’ at stages throughout the child’s life rather than ‘just a name’ that her son would be entitled to know when he reached his majority.

[19]  The problem of course is that this kind of arrangement cannot easily be contained. Once the ‘contact’ bottle is opened it cannot easily be re-corked. The child at some stage will inevitably influence the evolution of the relationship. It was this realisation which, in my judgment, unnerved the mother. As E’s relationship with his father developed so quickly and instinctively, despite the constrained nature of the contact venue she realised that in some way the child she regarded solely as hers would have to be shared not evenly, not even prescriptively but shared nonetheless. This was frightening to the mother and impeded any logical or child focused thinking about how contact should progress.

[20]  The litigation found its way ultimately to the High Court and came before me on 14th November 2014. At that hearing, I asked the parties to identify issues that it would be necessary for me to determine in order to analyse how the case should progress, if at all. These were identified as follows:

(1) The intention of the parties as to their respective roles in E’s life prior to his birth;
(2) Whether prior to his conception and birth either of the parents knowingly misled the other as to their intentions;
(3) What was agreed about decision-making for E prior to his conception and birth?
(4) The extent to which the parties were able to work cooperatively prior to and following E’s birth;
(5) What the applicant told his parents/colleagues and what they have now been told about his relationship with the mother;
(6) Whether there was an initial agreement that the applicant should be on the birth certificate.

[21]  I have already, in my summary of the case, identified my findings in relation to (5) above, i.e. what the applicant told his parents or colleagues about the birth of his son and relationship with his mother. In relation to (6), whether there was an initial agreement that the applicant should be on the birth certificate, it is unnecessary now for me to resolve. On 14th November I made an order confirming the father as ‘the biological father’. In consequence of that declaration, there will be, if there has not already been, a registration of the birth by the Registrar General under section 14(A) of the Births and Deaths Registration Act 1953.

[22]  There have certainly been times, in my judgment, where each of the adults has been less than frank with the other. Of that I do not have the slightest doubt. Ultimately, I take the view that, after E’s birth, the mother wanted to establish herself not as the primary carer but in effect as his sole carer. She saw in her own mind the father playing a very peripheral role in E’s life. There is an inherent tension here between her wish to establish E’s relationship with his father and her desire to keep that relationship within a narrow constraint. She did not contemplate him being involved in any of the major decisions relating to his welfare, but she was less than candid about that agenda to the father. As time went by and week after week he visited to endeavour to bring the child into the world for both of them, I believe that she could simply not manage to communicate to him her true feelings about the extent of his involvement in the future. More than that, I think she was inconsistent and unclear in her own mind as to what his role should be. They were united in their joint endeavour, committed to conceiving a child and inevitably, particularly, it seems to me, after the tragedy of the miscarriage, unclear about what the future would hold when and if a baby was ultimately born. After such a long time trying to conceive, this couple simply did not dare to plan they were unable to see beyond conception itself for reasons which are so obvious as to require no explanation.

[23]  I am not at all satisfied therefore that there were clear agreements about E’s future prior to his conception and birth. I am entirely satisfied that the parties were able to work together cooperatively for many years to a degree that is profoundly impressive, but I am satisfied that whilst their thoughts ran in parallel, they were only occasionally contiguous and matters were not really confronted until E was born.

[24]  There have now been 15 contact sessions between E and his father. The notes of the contact sessions are of a very high quality. I am not sure how, but the mother managed to prevail on the contact centre to let her sit in and take notes. That was unkind to the father and to E but it has ultimately reassured the mother that contact is a relaxed and enjoyable experience for her son. She can make no sensible criticism of the father at all and I have to say that had there been material I feel she would have been quick to alight on it. This is a facet of the mother’s deep seated anxiety about contact, it is not driven by simple hostility.

[25]  What was striking was the extent to which the father, whilst engaged in sometimes rumbustious play, grew to understand the nature and personality of his son. He gave evidence first. It was he who was asked first to describe his son’s personality and it was strikingly similar to that offered by the mother later. That he should know his son so well from what is still relatively limited contact sends a powerful signal to her that he is in fact a man who is capable of understanding his son’s needs. He understands his personality. He understands how to entertain and stimulate him and how to let him have fun. He knows the importance of planning for contact and he has shown complete fidelity throughout the whole of those contact sessions to the mother’s wish that he should not luxuriate in any openly paternal role. That must require for him, as it would for any father, incredible self-discipline and personal restraint. That he can make that kind of sacrifice should reassure the mother when she contemplates what she perceives as his limitations to manage contact.

[26]  The Guardian, who gave evidence, told me that she was entirely satisfied, as indeed am I, that the father is perfectly able now to move to unsupervised contact. I had contemplated continuing supervised contact, not because I thought it was necessary, but because I hoped that it would enable the mother to progress in her understanding of its quality and importance. But, as the Guardian rightly says, there have now been15 sessions over 18 months evidencing precisely that point. In effect, she says, to keep contact within the privations of a supervised contact centre would be to elevate, at this stage, the mother’s needs above those of the child and I would be losing my focus. She was right to refocus me. Her compromise was sensitive and creative. She suggested that there should be supervision of handover, initial supervision of contact, unsupervised contact, followed thereafter by supervision of return. I doubt any of that is necessary, but it involves relatively little intrusion into E’s life and strikes the balance for a short period, appropriately. Before the evidence was concluded the advocates requested a short adjournment which produced an agreement. A contact plan was drawn up which can be annexed to this judgment and which I need not set out here.

[27]  That left only one outstanding issue, namely a Parental Responsibility Order. To recap, contact is agreed, unsupervised contact is agreed, expansion of unsupervised contact is agreed. The father’s name will go on the birth certificate, this is automatic following the making of a declaration of parentage consequent on the fact of the ‘home donation’ and as such it will be re-registered by the Registrar General. Despite having come so far, ultimately the parties faltered on this last issue. That it has been given such importance by both the parents is largely emotional and without logical basis. Throughout the process I have observed the father repeatedly to yield to the mother’s wishes, in part because he thinks that she is usually right and, indeed, usually she is, but also because he is, in my mind, temperamentally passive. The mother said as much in her own evidence. Rather oddly, she told me that she wished, at times, he had been more assertive. I found that remark to be as genuine as it is difficult to understand, I draw from it only that the adults relationship here is complicated, perhaps inevitably so.

[28]  In succinct submissions Mr. Khan, on behalf of the mother, makes three short points. Firstly, he submits that to grant a parental responsibility order would elevate rather than diminish the potential for conflict between the parties. Secondly, he says, that however nebulous the court considers the plans were for the child’s future there has never been any real evidence to suggest that a Parental Responsibility Order was truly contemplated by either parent. As he puts it, it was not ‘part of the deal’. Thirdly, in a submission that Mr Khan recognises does not sit entirely comfortably with his first point, he contends that if I were to conclude that the father would not, in effect, use his Parental Responsibility Order at all, it is wholly unnecessary and therefore, conversely, should not be granted.

[29]  Given that fathers now appear on birth certificates, in every circumstance other than ‘home donation’, it is only in consequence of particular provisions that this father does not have PR conferred on him automatically. The law does not do so here, because re-registration by the Registrar General under section 14A (Births and Deaths Registration Act 1953) fails to trigger the conferring of parental responsibility on to the father, as section 14A is not one of the enactments specified in the Children Act 1989, under section 4(1A). If authority is needed for that proposition it is found in Re. M and others (2013) EWHC 1901 (Fam) (and see Hershman and Mc Farlane, Children law and Practice A[218]-[220]).

[30]  The Guardian, in her evidence, supported the making of a parental responsibility order. In her analysis, it merely conferred legal recognition of the actual status of the father in this child’s life, but far more importantly to her mind was that given the granting of such an order was ‘at some point an inevitability’ to adjourn that single matter and thus extend this already corrosive litigation in and of itself pointed strongly to the making of an order at this juncture. I cannot help but think that, with respect to Mr. Khan’s submissions, this also weighs heavily with the mother too, for her exhaustion with this process is every bit as great as the father’s. Her wish to move on with her life and E’s life is as obvious as it is instinctive and right.

[31]  What then of the relevant law? I can deal fairly briefly with Mr. Khan’s essentially makeweight submission that PRO was ‘not part of the deal’. I find that there simply came a point in this couple’s relationship when planning for the future, as the years passed, was put on hold. Planning gave way to expedience waiting to see what happened. When E was born the couple responded to him, his needs and their own delight.

[32]  In a case on very different facts Thorpe LJ captured the essence of the dilemma facing this mother and others in similar circumstances in Re. A v B and C (role of father) Court of Appeal (2012) 2 FLR:

“I am cautious in reaction to Mr Howard's repeated submissions that great weight should be attached to adult autonomy and the plans that adults make for future relationships between the child and the relevant adults. Human emotions are powerful and inconstant. What the adults look forward to before undertaking the hazards of conception, birth and the first experience of parenting may prove to be illusion or fantasy. B and C may have had the desire to create a two parent lesbian nuclear family completely intact and free from fracture resulting from contact with the third parent. But such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created. No doubt they saw the advantages of A as first an ideal known father and later as a husband to ease problems in the maternal extended family. It would have been naïve not to foresee that the long term consequences held disadvantages that had to be balanced against the immediate advantages”.

[33]  In short, even if a PRO had been specifically outlawed by the contemplated plan, which is not as I find it to be, at this stage the correct approach to the making of an order is to weigh into the balance such plan as there was, the commitment of the father to his son and the welfare interests of the child. Support for this approach is to be found in a helpful exegesis of the case law set out in Re. G (Children) (2014) EWCA Civ. 336 per Black LJ, at paragraph 42:

“There are a number of authorities which are useful in demonstrating how the courts have approached the issue of parental responsibility with single sex families. What follows is by no means a comprehensive review of the authorities, but rather an attempt to isolate aspects that may be of assistance in the present case. It has been said many times that there is no universal solution and that each case depends on its individual facts, but a consideration of previous decisions can help to shape thinking appropriately.
43. Re G (Residence: Same-Sex Partner) (supra) is one of the catalogue of relevant authorities. The litigation in that case continued and a later issue between the same parties found its way to the House of Lords as In re G (Children)(Residence: Same-sex Partner) [2006] UKHL 43 [2006] 1 WLR 2305. Baroness Hale there considered the weight to be attached to the fact that one party is both the natural and legal parent of the child and the other is not. In a well-known passage in her speech, beginning at §32, she considered the different ways in which a person may be a parent to a child dealing with legal parenthood (§32), genetic parenthood (§33), gestational parenthood (§34) and social and psychological parenthood (§35).
44. In A v B and C (Lesbian Co-Parents: Role of Father) [2012] EWCA Civ 285 [2012] 2 FLR 607, this court declined to give generalised guidance for this area of family law and stressed that: ‘In the end the only principle is the paramountcy of child welfare.’ (§23 and see also §39).
45. Thorpe LJ rejected the submission that great weight should be attached to adult autonomy and the plans that the adults had made for future relationships between the child and the relevant adults observing (§27) that human emotions are powerful and inconstant and that faced with reality, plans may prove to be illusion or fantasy. The adults' preconception intentions can be a relevant factor but they are not determinative and what must dictate is not the interests of the adults but the welfare of the children (§44). As I said (§45), it is likely to be important in deciding what is in the child's best interests to identify the source of the child's nurture, stability and security. Some children are used to an amalgam of parenting, some less so. Disruptions to the child's security and stability, even if arising indirectly because one of the adults is distressed, are relevant as potentially harmful to the child. Particular consideration also has to be given to the part that each adult can play in the child's life (§46).
46. I said that I would return to Re G; Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders). I need not go into all the intricacies of that case. It suffices to know that a man provided sperm to a female couple who were civil partners. The first child was born prior to the 2008 Act and the father had not infrequent contact. The second child was born after the 2008 Act came into force. The father had contact with that child too. He was entitled to apply for section 8 orders in relation to the first child as of right but the 2008 Act provisions meant that he was not considered the legal father of the younger child and he therefore required leave to apply for section 8 orders in relation to that child, which he sought from Baker J. He wished to apply for contact but also, as he could only acquire parental responsibility through a residence order, for 'parental responsibility/joint residence'. The decision is of importance because it was thought to be the first involving an application for leave to apply for section 8 orders by men who were the biological fathers but, by virtue of the 2008 Act, not the legal fathers of their children. The issues requiring determination exposed the tension between the legal position as to fatherhood and the biological reality.
47. Baker J examined the policy underpinning the relevant provisions of the 2008 Act which he considered to be ‘simply to put lesbian couples and their children in exactly the same legal position as other types of parent and children’ (§114), acknowledging that alternative family forms without fathers are sufficient to meet a child's needs (§113). He observed (§116) that as a matter of law, it was right to describe the father as a ‘stranger’ to the child but that in another sense, he was not a stranger. He had been chosen by the lesbian couple to father their children, they had involved him in the preparations for birth and allowed him regular and frequent contact thereafter. Baker J said that whilst the 2008 Act denied the biological father the status of legal parent it did not prevent the lesbian couple, in whom legal parenthood was vested, encouraging or enabling the biological father to become a psychological parent. So, he accepted the submission that ‘the potential importance of genetic and psychological parenthood is not automatically extinguished by the removal of the status of legal parenthood, and that social and psychological relationships amounting to parenthood can and often do co-exist with legal parenthood’ (§119).

[34]  One theme that runs through the law in this area is that each case has ultimately to be looked at on its own individual facts. Neither this court nor the Court of Appeal, has felt able to offer guidance as to how to approach welfare issues such as ‘parental responsibility’ and ‘contact’ in families where children are conceived by adult arrangement outside sexual intercourse.

[35]  I am clear that it would be entirely wrong to approach this case as if E had been born in the context of a loving heterosexual relationship, and determine any of the issues from that premise. But there was a relationship, it was respectful, it was inevitably intimate and it was enduring. This was not a brief commercial encounter, far from it. I also think it entirely unlikely, as Mr. Khan has said, that the father will use his Parental Responsibility Order in any way to undermine the mother. For a start, as I have said, he shares so many of her objectives and feels her to be far better placed to pursue them. I believe that ultimately he seeks the order so that his status as a father can be properly reflected in law.

[36]  In this respect I find that Butler-Sloss LJ in Re. H (Parental Responsibility) (1998) 1 FLR 855 makes observations which have resonance here. There she says that:

“Parental responsibility is a question of status and is different in concept from the orders which may be made under section 8 in Part II of the Children Act. The grant of the application declares the status of the applicant as the father of that child. It has important implications for a father whose child might for example be the subject of an adoption application or a Hague Convention application. In each of those examples, a father with parental responsibility would have the right to be heard on the application. He would have the right to be consulted on schooling, serious medical problems, and other important occurrences in a child’s life”.

[37]  I have not the slightest doubt that the moral imperative here is clear. Of course, this father should be consulted if there are serious medical issues for E in the future, nor do I doubt that the mother will deny that. He has the right to be consulted in schooling, not for his views to be determinative, but merely to be consulted. The legal framework is predicated not on empowering anybody but ultimately in signalling responsibility for the child. If ever two people took their responsibilities to a child seriously, it is this couple sitting before me this afternoon and the legal framework should merely reflect that achievement.

[38]  I echo, finally, what has been said by both Counsel. E is very fortunate to have the parents he does. If either or both of them sat in this court for only a few days it would bring home to them everything that they have to offer their child and how much better placed he is than many children whose circumstances come before this court. I hope that the common bond that drove them in achieving the conception of this child may be reignited and guide them for the rest of his minority.

Conclusions:

[39]  There are here a number of key features which point, compellingly, to the making of a Parental Responsibility Order:

i. The parties have a relationship now spanning many years in which they have shown a real capacity to work cooperatively towards a shared objective, both prior to and after the birth of their child;
ii. The parent’s capacity for cooperation is plainly based on a core mutual respect which continues to be evident and produced an agreed and thoughtful contact schedule;
iii. At very least both parties agreed from the outset that this father will be known to this child and play a part in his life. That relationship has, as a fact, now been established and has shown to be a very positive one for the child;
iv. The parents share common aspiration for the child’s future, both agreeing that the mother, as primary carer, is likely to take the key decisions in E’s life;
v. The father is highly unlikely to use a Parental Responsibility Order to undermine the mother’s care or to seek to countermand her decision making. He is likely to resort to court proceedings only as a measure of last resort;
vi. The father provides financial support for his son based on a Child Support Agency calculation, which application was made by the mother.
vii. The father is now registered on the child’s birth certificate.
viii. The order merely reflects the proper legal status of the father in his son’s life and properly equips him to exercise it, particularly in circumstances where an emergency of some kind might arise;
ix. To fail to make a Parental Responsibility Order at this juncture would inevitably lead to protraction of the litigation which is in inherently undesirable;
x. The child’s Guardian supports the making of a Parental Responsibility Order.

[40]  At no point in this hearing or in the judgment has the word ‘donor’ been used to describe the father, though it did appear in some of the papers. I would express the hope that the word becomes extinct, in this context, in the lexicon of the family law reports. I cannot easily contemplate any factual circumstance where its use is anything other than belittling and disrespectful to all concerned, most importantly the child.

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