UK: Three’s A Crowd?

Last Updated: 24 July 2012
Article by Richard Adams

Few will have missed the recent coverage in the press in which it was claimed that the Court of Appeal in A v B [2012] 'allowed' a two-year old boy, born to a lesbian couple and their gay male friend, to have three parents instead of two. It follows several recent high-profile cases in which the courts have grappled with disputes relating to 'alternative families'. But beyond the headlines, the judgment of Thorpe LJ, Black LJ and Sir John Chadwick reaffirms key principles regarding co-parenting arrangements and raises important issues for the future.

Background

The boy was conceived following an agreement at a dinner party between the mothers and the father. Interestingly, the biological mother was from a religious background, and so she and the father married two years before the birth to alleviate any difficulties she might face while pregnant. While the exact nature of their intended roles was subsequently disputed, it was agreed that the boy would live with the mothers.

Difficulties in the relationship between the father and mothers soon appeared during the pregnancy and the father applied for a defined contact order shortly following the child's birth. The mothers then applied for a joint residence order and a specific issue order in relation to the father's parental responsibility.

First instance

The case came before HHJ Jenkins who made a joint residence order in the mothers' favour, and an order for contact with the father for six hours once a fortnight, remarking that the father's role would be secondary, with no staying contact, for the foreseeable future. He held that the case was not in any way analogous to a divorce model, and therefore consideration of an equivalent contact regime was inappropriate. He said that:

Any benefit [from developing the relationship] that accrues is likely to be outweighed by what I consider is likely to be confusion and disruption and the potential disruption of the relationship between the mothers and the child, and it is that relationship which provides the nurture, stability and security.

Father's position

The father appealed and, as Thorpe LJ noted, the appeal was largely directed at the judgment, as it would have been hard for the father to show a deficit in the contact order. However, while the HHJ Jenkins' comments would not bind a judge in the future, the effect was equivalent to a prohibition of staying contact without the court's permission for three to four years. The father argued that the judge had effectively frozen what would otherwise be the normal development of the relationship with the child.

Mothers' position

The position of the mothers was that the judge had been concerned with contact only in the immediate future and so the Court of Appeal should be reluctant to interfere with that. Pointing to a string of recent decisions, they argued that it was inappropriate for the father to seek to apply nuclear family arrangements to a gay family where one parent was not exercising primary care. They stressed that great importance should be placed upon the agreement between the adults.

Appeal

The court found in the father's favour, allowing his appeal and remitting the case to a Family Division judge for consideration of all relevant welfare factors. Thorpe LJ gave the leading judgment with a detailed analysis of the issues by Black LJ in support. Thorpe LJ found that HHJ Jenkins should have concluded that the issue of whether the relationship between the father and the child should be encouraged to develop had to be decided in stages in light of the accumulating evidence. There were too many unforeseeable factors to declare the future as he did.

Guidance for 'alternative families'

Whether it was possible to provide general guidance to cases involving alternative families has been something the courts have struggled with for some time, with Hedley J commenting in the similar case of Re WB [2011] that providing general guidance was 'fraught with risk'. In Re P and L [2011], however, he subsequently emphasised the following:

  • the importance of agreeing the future roles of the parties before a child is born;
  • warning against the use of stereotypes; and
  • that the level of contact should be determined with the primary purpose of reflecting the role that has either been agreed or has been discerned from the conduct of the parties.

Black LJ had initially given permission for the appeal in A v B on the basis that it related to 'Important issues relating to the courts' approach to children born into 'alternative families' and the relationship of such children with their fathers'. However, on appeal she found there could not be any general guidance for such cases as each was so fact-specific, a recurring point made by both her and Thorpe LJ.

Paramountcy of welfare

Far from there being general guidance that could be given, Thorpe LJ reasserted that the only principle was that of paramountcy of the child's welfare and found that the judge at first instance had made a fundamental error in seeking to draw a yardstick from previous cases and apply it as a general authority. This ignored the commitment that the father had sought to provide and Thorpe LJ commented that:

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. As part of that, Thorpe LJ disagreed with Hedley J's views regarding contact in these cases, finding that the primary purpose of contact was to promote the child's welfare, not reflect previously agreed roles.

An important distinction, and one not made in the news reports, is that Thorpe LJ did not find that the child in this case, or any child, should benefit from a third parent, but that it should not be excluded from consideration. Focusing on the wishes of the parents can insufficiently weigh the welfare and developing rights of the child. This is an important point as, while it may be wrong to take 'traditional families' as a model for all, the child's welfare remains at the heart of the law.

Roles of the parents

There has been little consensus in the courts as to how to define and treat the various adults involved in the conception and care of children born to 'alternative families'. HHJ Jenkins referred to the well-known definitions provided by Baroness Hale in Re G [2006], which distinguished between biological, gestational, and psychological and social parenting, finding that the father was a biological, but not psychological parent.

Thorpe LJ did not directly engage with those definitions, but referred to Hedley J's comments in Re B contemplating the use of the principle of primary and secondary parenting in such cases, which Thorpe declined to endorse. He noted that while here the father was only on the threshold of providing secondary care, viewing a father as a secondary parent had the danger of demeaning him where he may otherwise have an important role. Black LJ also commented that the habit of referring to a biological father as a known donor should be reconsidered.

Thus there should be a distinction between the roles of parents and those of primary and secondary carers. A father may not even be providing secondary care, but could be considered a parent with a valuable role to play. This appears to reflect the importance placed by Baroness Hale in Re G upon the biological connection between parent and child.

Pre-conception intentions and Agreement

Advisors have for some time stressed the importance of obtaining co-parenting agreements before starting the process of conception, and there has been some debate as to whether they could or should be binding. Black LJ firmly took the view that while the intentions were relevant factors, they could not be determinative. While any such agreement cannot be considered a legal contract, she noted that it would be sensible for people to consider and spell out, in as much detail, what they contemplate will be the arrangements.

This must be right, as it would not be in the child's best interests to determine, before conception, what role each parent will always play. However, a common factor in cases involving alternative families has been the lack of considered and detailed agreement between the prospective parents before conception took place. Even where roles have been considered, there appear to have been misapprehensions (whether retrospective or otherwise) as to the exact nature of their role which may have been smoothed out in pre-conception discussions.

Available orders

Black LJ said that consideration should be given to whether other available orders might assist in addressing particular difficulties or concerns that the parents have. Both here and in T v T [2010], a joint residence order was made between the mothers to alleviate their anxiety about the arrangements if the biological mother died. However, in T v T, Black LJ noted that such considerations would not regularly tip the balance in favour of a joint residence order.

Parental responsibility

The appeal was not directly concerned with parental responsibility, but this is an issue central to families as much, if not more, than contact arrangements. HHJ Jenkins, in making the joint residence order, stressed the importance of parental responsibility, noting the status and responsibilities that it conveyed. This raises an interesting issue in that the father in this case had parental responsibility as a result of his marriage to the biological mother, but while no restrictions were placed on this by the judge at first instance, his comments about the status conveyed would appear to conflict with the order he made. While the cases in this area in which the father is married to the biological mother are likely to be few, the issue of parental responsibility remains a thorny one. In the similar case of R v E and F [2010], Bennett J dismissed a father's application for parental responsibility and held that a key element of parenting involved taking decisions and exercising responsibilities in relation to the child. Other recent cases have also refused to grant parental responsibility to the father or restricted the exercise of it. Each case is of course fact-specific, but a situation in which contact is allowed to develop, but where parental responsibility is restricted, can be envisaged.

Role of the second mother

The second mother was understandably concerned about her vulnerability without a residence order in the event that the biological mother died, and anxiety around the role the non-biological mother plays has been a feature within many such cases. The court was not directly concerned with the details of her role in this case, although implied that they see her as a primary parent in the same manner as the biological mother and father.

However, with Re G still the leading authority in relation to disputes between two mothers, and in which primary care was given to the biological mother in large part due to that biological connection, there may still be concerns about the role of the second mother in the event the relationship between the mothers break down. Both Re G and this case place importance on the biological connection, and it will be interesting to see if future decisions continue in this vein. It is important to note that here, and in other cases, the second mother will not be the legal parent of the child, and many will remember T v B [2010] in which Moylan J held that there was no financial obligation by the second mother, who had joint residence but was not the civil partner of the biological mother. It is clear that there are still anomalies relating to this area that the courts can do little to counter, and so primary legislation will be required.

Conclusion

This will not be the last, or even definitive, case involving alternative families, and, given the emphasis on each case being fact-specific, it could never be. This is due to the variety in the methods by which such families are formed, and the assortment of intended and actual roles that each adult involved can have. However, it provides helpful clarification to those entering into such arrangements, and those advising them, that while they may not be analogous to the more traditional models, the key principles remain the same.

Some critics of the judgment have complained that this is likely to lead to increasing number of lesbian couples conceiving using anonymous donors through a licensed clinic, which would enable both to be legal parents following the Human Fertilisation and Embryology Act 2008, and that men will find it more difficult to enter into co-parenting arrangements as a result. It is clear from A v B, and cases like it, that whatever path is taken, it is vital that careful thought is given to the best avenue for conception, and the legal and practical rights and responsibilities for each adult involved, to help avoid the acrimonious and traumatic disputes that end up in court.

A v B & anor [2012] EWCA Civ 285

Re G (Children) [2006] UKHL 43

Re P and L [2011] EWHC 343

R v E and F (Female Parents: Known Father) [2010] 2 FLR 383

T v B [2010] EWHC 1444 Fam T v T (Joint Residence) [2010] EWCA Civ 1366 Re WB (children) (contact) [2011] EWHC 3431 (Fam)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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