The UK's Court of Appeal has urged two women who were in a same sex relationship to reach an agreement over the custody of their five-year-old twins. Lady Justice Black, who determined that the case should be reconsidered and reversed the decision of the trial judge, also highlighted that the law must keep pace with 'new families'.
The appellant, who is the genetic mother of the twins, donated eggs to the respondent who had previously experienced difficulty in conceiving. The eggs were fertilised with donoted sperm and the respondent then gave birth to twins in 2008. The respondent, who is the gestational mother, is considered the children's legal mother but the genetic mother is not.
Some of the remaining embryos were then used to conceive another child, D, who was born in 2012. The case was further complicated by the fact that following the breakdown of their relationship in 2012, the respondent entered into a civil partnership with C, who was later conferred parental responsibility over the twins and is their non-biological legal mother.
The gestational mother had already agreed that the genetic mother could continue to have 'substantial' contact with the twins and acknowledged that her ex-partner was 'an important adult in the children's lives'. However, the appellant argued that she is entitled to a shared residency order with the birth mother, which would give her parental responsibility over the children.
Parental responsibility confers the ability to make decisions regarding a child's education, healthcare, as well as holidays abroad. The appellant submitted evidence that she looked after the children while the gestational mother was at work, explaining that she was the 'home maker' while her former partner had the role of the 'provider'.
Nevertheless, the trial judge, also called Black, decided that the gestational mother should have sole residency. Judge Black in the County Court ruled that the genetic mother was 'not a parent of the children and that her status should not be elevated in that way'. She further expressed concern about the genetic mother's ability to manage parental responsibility, influenced by an earlier threat from the appellant that she would approach the press with details of her case.
On appeal, Lady Justice Black, sitting with Lord Justice Moses and Lord Justice Kitchin in the Court of Appeal, reversed the decision of the trial judge. Lady Justice Black ruled that the court did not have sufficient information about the background facts to make an order in either party's favour and the case should be remitted to the county court for a new hearing.
The Court of Appeal observed that the trial judge had failed to give sufficient weight to the status of the appellant as the twins' biological mother, rather than as someone with contact with the children. Furthermore, it said that the lower court had 'failed to articulate' what led it to raise concerns about the genetic mother being handed parental responsibility, beyond her mention of talking to the press.
The case will now be returned to the County Court for a new hearing but the judge recommended that the women come to an agreement out of court, if they are able to. Quoting herself from another case, Lady Justice Black said the childhood of the twins was being permitted to 'slip away' amid 'adult wrangles' and litigation.