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CG v CW and Others [2006] EWCA Civ 372

Same-sex partner’s application for primary care of children upheld.

Court of Appeal: Thorpe, Laws and Hallett LJJ (6 April 2006)

Same-sex partner's application for primary care of children upheld.

This case concerned two children, conceived (as a result of anonymous donor insemination) by their biological mother, CG, who cohabited from 1995 until 2002 in a same-sex relationship with her partner, CW. Following the breakdown of the relationship, CW applied for, and was ultimately granted, a joint residence order (see [2005] EWCA Civ 462), and a condition was imposed preventing CG from relocating to Cornwall with the children.

In August 2005, CG and her new partner moved, with the children, to Cornwall, in flagrant breach of the court order and in a manner which deceived CG's solicitors and CW and was deeply unsettling for the children. CW did not know the whereabouts of the children and, in September 2005, applied for orders under section 33 of the Family Law Act 1986. The orders were made, and two applications were then issued: by CG, for removal of the restriction previously imposed and for reduction of CW's contact; and by CW, for the shared residence order to remain in place but for CW to become the children's primary carer.

The judge heard evidence from both adult parties and their current partners, and from the guardian representing the children. In his written report, the guardian recommended no change of residence and reinstatement of contact at the level originally set; in his oral submissions, having heard the evidence of the four adults, he reaffirmed his conclusion but stated that the situation was finely balanced. The judge, having explained her reasons for rejecting the guardian's recommendation, granted CW's application for primary care. CG appealed.

The principal grounds of appeal were: (1) the judge did not pose the correct question, namely whether there were compelling factors requiring the displacement of the children's right to be brought up by their natural (ie biological) mother; and (2) the judge did not carry out a methodical survey of all significant features of the case, as required by the welfare checklist in section 1(3) of the Children Act 1989, and treated CG's misconduct as the crucial issue in the case to the exclusion of all others.

Held, dismissing the appeal, that it was not possible for the appellant to elevate a principle of general application and assert that the judge misdirected herself in ignoring it; as to the second ground of appeal, the judge had stated twice in the course of her judgment that she had applied the welfare checklist, and had correctly identified the decisive crux in this case.

The court reviewed the line of cases, cited by the appellant, which pointed to the weight to be given to the fact that a parent was a 'natural' parent; it observed that, in all the cases referred to, the battle had been between a biological parent or parents and some other contender for care, and considered that decisions now need to be made on the basis that norms which seemed safe 20 or more years ago no longer applied. Particular reference was made to the judgment of Black J in Re D [2006] EWHC 2 (Fam) concerning the issues surrounding same-sex relationships.

Ultimately, on the facts, the court supported the judge's view that the short-term risk of moving the children had to be balanced against the risk of future harm if the children were deprived of the relationship with CW and her family which they needed for their welfare. In view of the guardian's assessment of the risks as equal, the judge had validly justified her departure from the guardian's recommendation on the basis of CG's reasonably foreseeable future conduct.

Read the full text judgment here