19 March 2012
ByAppeared in BioNews 649
The Court of Appeal in London has ruled unanimously that a gay man who fathered a child for a lesbian couple is not a secondary parent, allowing him greater access to his two-year-old son. As the judge who granted permission to appeal wrote, the case raises 'important issues relating to the courts' approach to children born into "alternative families" and the relationship of such children with their fathers'.
In giving the lead judgment at the Court of Appeal, Lord Justice Thorpe ruled that although the lesbian couple desired to bring up the child as a two-parent nuclear family, the father's commitment to the child since birth suggested he was seeking a 'relationship of considerable value'.
The father, known as A, married the biological mother, B, in 2007 in order to appease her family who had difficulties accepting her sexual orientation. There was no intention of cohabitation between A and B.
A had agreed prior to the pregnancy that he would not assert his paternal rights and that the lesbian couple would be the primary carers for the child. They agreed the child would reside with B and her partner, C, and A's role as the biological father would remain secondary. The women were reportedly concerned about the impact any greater role of the father would have on their relationship and that with the child.
The parties' dispute over contact arrangements was heard by the Family Division last July, where the judge upheld the women's case, albeit extending A's contact hours to one meeting per week of five hours. Judge Jenkins expressed reluctance to fracture what is described in the judgment as a nuclear family’.
Lord Justice Thorpe took a different view, saying 'it is generally accepted that a child gains by having two parents'. He added that 'it does not follow from that that the addition of a third is necessarily disadvantageous'.
The court said the arrangements made before the birth of the child did not necessarily hold sway in the life of the child. 'Human emotions are powerful and inconstant', said Lord Justice Thorpe. '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'.
He added that although it had been suggested by the courts that contact should reflect the role agreed by the parties, the primary purpose remains to promote the welfare of the child. He cautioned against B and C's wish to form a 'two parent lesbian nuclear family' without any contact with A. 'Such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created', he said.
Lady Justice Black, also hearing the appeal, highlighted the difficulties faced by the courts in this area. She said the courts 'continue to struggle to evolve a principled approach to cases such as this one'. However, she concluded, although guidance would be helpful, all cases were fact specific. 'This is an area of family law in which generalised guidance is not possible', she said.
Sperm donors who donate through an licensed clinic are not regarded as being legally responsible for any children born as a result of their donation under UK law. However, this law does not apply to arrangements made outside licensed clinics.
Lord Justice Thorpe refused to endorse the concept of principal and secondary parents being developed by the family courts, saying, 'it has the danger of demeaning the known donor and in some cases they may have an important role'.
A's case will now go to the High Court Family Division for a judge to reassess the level of contact with his son.