Child’s welfare is paramount in contact dispute
16 March 2012
A v Band C  EWCA Civ 285 – read judgment
In a case concerning a lesbian couple and a known biological father, Court of Appeal reconfirms approach when dealing with cases under the Children Act 1989 – the child’s welfare is paramount.
This case concerned an application by a biological father for contact with his son who was living with his mother and his mother’s long-term lesbian partner. The three adults in the case had been friends for many years and indeed the father had married the mother before the child was born in an attempt to placate the mother’s family who were deeply religious. It was accepted that this was a marriage of convenience and as a result the father acquired parental responsibility for the child.
At first instance the judge found that all the adult parties had agreed that the child would be brought up by the mother and her lesbian partner as the primary carers with the father, whilst being acknowledged as the child’s biological father, would play no role in the child’s upbringing. However, this agreement did not last and before the child was born the father began to ask for contact to include overnight contact. Following the child’s birth in September 2009 the father applied for a defined contact order.
The first instance decision
By the time the matter came before the court at final hearing it was agreed that there should be some contact to the father. The question remained as to form of such contact. Giving judgment Jenkins J ordered that contact should take place once per fortnight but that the father’s relationship with the child would be limited and that he could not envisage the father’s contact moving to any form of staying contact in the near future but that it may be the case that when the child was between the age of three and four a whole day at each contact would be appropriate..
The judge also made a Joint Residence order thus conferring parental responsibility on the mother’s partner.
It was the wording of the judgment that formed the basis of the argument when the case reached the Court of Appeal. It was accepted that whilst at any future hearing the court could consider the issue of increasing contact and progressing contact to staying contact any respondent to the application could rely strongly on the wording of the judgment that effectively put a stop on any consideration of progressing contact until the child was around three or four years old.
In respect of the particular circumstances in this case, Lord Justice Thorpe held that the female adults:
…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
“the role of the father in the child’s life will depend on what is in the child’s best interests at each stage of the child’s childhood and adolescence. As with any other child, the father/child relationship may turn out to be close and fulfilling for both sides, it may be no more than nominal, or it may be something in between.”
Two further cases ML and AR v RWB and SWB (2012) Fam Law 13 and Re P and L (2011) EWHC 343 1, the judgments of which post-date this appeal, attempted to lay down some guidance when dealing with cases which concern children born to two female parents and a known male parent. The reasoning by Mr Justice Hedley was to categorise such cases in to the notion of principle and secondary parents. The line of reasoning did not, however, find favour with Lady Justice Black who held that:
I have concluded that this is an area of family law in which generalised guidance is not possible.
In addition, Mr Justice Hedley gave further guidance in the Re P and L case:
Accordingly the only guidance that I feel able to give is threefold: first to stress the importance of agreeing the future roles of the parties before the child is born; secondly to warn against the use of stereotypes from traditional family models…and thirdly to provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties…
In respect of this guidance Lady Justice Black held that:
Although I understand the sense in which Hedley J defined the primary purpose of contact as being to reflect the role agreed or discerned from conduct, we must never forget that the primary purpose of such contact is to promote the welfare of the child.
Whilst elements of the welfare checklist were considered in this case it is apparent that Section 1 of the Children Act was not applied in its entirety. The fundamental principle enshrined in Section 1 that the child’s welfare is the court’s paramount consideration seems to have played second fiddle to developing notions and principles of the role of known biological father in cases with two female parents. This fundamental principle must be applied notwithstanding any competing interests of the adult parties, howsoever those relationships may present themselves. What is required is a detailed analysis of the child’s welfare which will inherently be different in every case.
This case also highlights the importance of expert evidence in family cases. Expert evidence in this case would have provided the trial judge with what Lord Justice Thorpe called:
A bespoke report that considers the all important facts specific to the case
The decision not to order expert evidence was taken at two interlocutory hearings and was not challenged by way of appeal. It appears as though the judge at first instance relied too heavily on published material when coming to conclusions about the role of known fathers in situations where there are two male parents seeking to raise the child by themselves.
In addition to the issue of expert evidence Lord Justice Thorpe also held that it would have been desirable to have joined the child as a party so that the child’s position could have been put
…to ensure that adult concerns and considerations did not dominate the debate.
The outcome was for the case to be remitted to the Family Division for reconsideration of the welfare balance and for consideration to be given to expert reports and possible separate representation of the child.
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