Three Parents and a Baby

30 MARCH 2012
A v B and C [2012] EWCA Civ 285

This appeal concerned the child, M, who was aged 2 ½ .  M’s biological parents are B and A.  B is in a long-term lesbian relationship with C.  A is/was an old friend of B and C.  When B and C wanted a child, A (himself homosexual) volunteered to be the sperm donor.

The issues in the case centre around the role of A in M’s life, especially in light of a pre-birth agreement that the three adults entered into and how the courts should approach these type of cases.

It seems that the three adults had a shared understanding that upon birth the child would be brought up in a family unit by B and C and that A, whilst acknowledged as the child’s biological father, would very much play a secondary role that would not disrupt the family unit.

The appeal itself was not so much about the Order made (A accepted his contact would only progress in incremental steps) but about the approach taken.

It seems to me the problem stems from the fact that the Judge at first instance attempted to define A’s future relationship with M, and set an objective of contact being to develop a “limited” relationship and even discussed what should, or rather what should not (i.e. overnight stays) be the position  in three or four years’ time.

He also considered the published report by the eminent and much feted expert Dr Claire Sturge on “Gay and Non-Biological parenting”, after previous applications to instruct Dr Sturge in the case were refused (by other Judges).

The Court of Appeal came to the following conclusions:

-          A court’s power to restrict future applications lies in an Order pursuant to Section 91(14) of the Children Act 1989 and should be explicitly made as an Order.

-          There are no general rules or “yardsticks” to apply to disputes between two female parents and an identified male parent.  All cases are fact specific and the only principle of general application is the paramouncy of child welfare.

 -         Relying on published articles is no substitute for bespoke expert reports.

-          The concept of principal and secondary parents cannot be endorsed.  It demeans the known father who may have an important role to play.  In this case A was hardly even providing secondary care, but that did not make him a secondary parent.  B and C were, without doubt, the primary carers but that does not elevate them to principal parents.

-          Lady Justice Black went one step further and also frowned upon the use of the term “donor” to describe the biological father in cases such as these.  Whilst it might be appropriate in anonymous sperm donation cases, where the father is known it might not be appropriate and might give the impression he had given his child away and that would be misleading.

-          The adult’s pre-conception intentions were relevant factors, but they neither could, nor should, be determinative.  These are not dry legal contracts.

Matthew Barry