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The House of Lords has overturned the decision of the Court of Appeal in April 2006 which gave a residence order to the non-biological parent of children born by artificial insemination to a lesbian couple. During the relationship, the biological mother (CG) was identified as the primary carer. Following their separation the High Court made a shared residence order to enable the mother's former lesbian partner (CW), 'the non-biological parent' to achieve parental responsibility, together with an order prohibiting the mother from moving any significant distance from the former partner. CG deliberately flouted that order, secretly setting up home in Cornwall, arranging schooling in advance and removing the children from their home city without any prior warning. CW applied for orders under s 33 of the Family Law Act 1993 to discover the children's whereabouts and, once that had been established, sought to be named as primary carer. The judge granted residence to the CW to prevent a 'future of litigation and emotional damage to the children'. The Court of Appeal in Re G (Residence: Same Sex Partner)  EWCA Civ 372, dismissed CG's appeal stating that blood ties were no longer deemed an advantage when both parents had cared for children.
The House of Lords reversed that decision on 26 July 2006 in Re G (Children)  UKHL 43. Baroness Hale of Richmond giving the leading opinion started with a re-statement of two issues of principle. The first was the weight to be attached to the fact that one party was both the natural and legal parent of the child and the other was not, which required an exploration of the concept of natural" parenthood and its significance both for the adults and for the child. The second was the approach to be adopted by the court where the party with whom the child had her principal home was reluctant to acknowledge the importance of the other party in the child's life. Her Ladyship concluded that the Court of Appeal had allowed the unusual context of the case to distract them from principles which were of universal application. First, the fact that CG was the natural mother of these children in every sense of that term, while raising no presumption in her favour, was undoubtedly an important and significant factor in determining what would be best for them now and in the future, yet nowhere was that factor explored in the judgment. Secondly, while it might well be in the best interests of children to change their living arrangements if one of their parents was frustrating their relationship with the other parent who was able to offer them a good and loving home, that was unlikely to be in their best interests while that relationship was in fact being maintained in accordance with the court's order.
The appeal was allowed unanimously, Lord Nicholls of Birkenhead stating that a child should not be removed from the primary care of his or her biological parents without compelling reason. An order was made reversing the names in the current allocation of time between the two households together with a fresh family assistance order. Baroness Hale said she was very conscious of the vulnerability of someone in CW's position. Her importance in these children's lives had been stressed by both the professionals and all the judges who had decided the case. The mother should now be in no doubt about that or about the possible consequences should she not adhere to the arrangements which we had ordered.
For an article on the Court of Appeal decision see 'Residence Applications Does Biology Matter?' in the July 2006 issue of Family Law.
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