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Re G (Children) [2005] EWCA Civ 462

The making of a joint residence order was the appropriate course of action in relation to same-sex relationship.

Re G (Children) [2005] EWCA Civ 462

Court of Appeal: Thorpe, Tuckey and Arden LJJ (6 April 2005)

The making of a joint residence order was the appropriate course of action in relation to same-sex relationship.

The parties to this appeal had been in a same-sex relationship, and cohabited between 1995 and 2003. During the course of the relationship, the family was enlarged by the birth of two girls, both of whom were the biological children of the respondent conceived by anonymous donor insemination. In September 2003, the appellant applied for a joint residence order in respect of the children and, at a hearing started in June 2004 (one day) which was completed in November 2004 (two days), the judge refused the application but made a series of section 8 specific issue orders designed to ensure that the appellant retained a significant role in the lives of the children.

It was common ground at that hearing, in view of the limited terms of Children Act 1989, s 4, that the appellant could only achieve parental responsibility in relation to these two children if she succeeded in her application for a joint residence order, by virtue of s 12(2) of the Act. The CAFCASS officer had recommended that a joint residence order should be made and, without such an order, the appellant would be marginalised.

On appeal, the appellant submitted that the judge: had rejected the recommendation of the CAFCASS officer without sufficiently reasoning and justifying her departure; had not sufficiently identified the importance of the indirect application for parental responsibility and had not had regard to authority in that area; gave too much weight to the difficulties in the current relationship between the parties as a factor that precluded a joint residence order; and did not specifically address the benefits to the children in the making of shared decisions as to their future, ie flagging up the importance that the court had attached consistently over recent years to the benefits of shared parental responsibility.

Although counsel for the appellant did not assert discrimination against his client, he made the general observation that had the case concerned the two children of a heterosexual couple who had cohabited between 1995 and 2003 and the father, being the absent parent, had sought the parental responsibility order on the strength of the same degree of past and proposed future commitment as was demonstrated by the appellant, the outcome would have been evident.

Held, allowing the appeal, that the judge's explanation for rejecting the CAFCASS officer's recommendation was not sufficiently well grounded or explained; the parental responsibility order was correctly identified by the CAFCASS officer as the appropriate safeguard to prevent the mother from reducing the appellant from the other parent into some undefined family connection. Also, it was not sufficient for the judge to say that a parental responsibility order, as opposed to the order that she preferred, would be provocative of disputes that otherwise would have been avoided.

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