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Re D (Contact and PR: Lesbian Mothers and Known Father) (No 2) [2006] EWHC 2 (Fam)

Parental responsibility order granted to father, subject to certain conditions.

Family Division: Black J (12 January 2006)

Parental responsibility order granted to father, subject to certain conditions.

This case concerned a father's application for parental responsibility in respect of his daughter, born in 2000, in the following circumstances: the child's mother and her long-term lesbian partner decided they would like to bring up a child together and, wanting the child to have a father figure in its life, they advertised for a man who would be interested in fathering a child. After discussion, the decision was taken to go ahead, and the child was conceived following sexual intercourse between the mother and father.

From the outset, the father expected to be directly involved in the child's life, fulfilling something of the role of the absent parent after divorce who might share the child's leisure time equally with the child's mother and participate in decisions about the child; however, the mother and her partner intended that he should complement their primary care of the child by being a real father through no more than relatively infrequent visits and benign and loving interest.

Once the child was born, there was considerable tension between the three adults, leading to proceedings in 2001 before the same judge (1) to regulate the father's contact with the child, and (2) granting parental responsibility to the mother's partner under a joint residence order.

On this later application, the judge had the assistance of a CAFCASS report, which recommended that parental responsibility should be granted to the father, albeit based on the traditional approach to the principles for deciding such an application; however, none of the authorities had so far dealt with the situation that existed in this case, where a same-sex couple had deliberately decided to create a family and, with the knowledge of all concerned that it was their intention that they should be the primary carers, involved a man to father a baby. In addition, the guardian had instructed, at the judge's request, a consultant child and adolescent psychiatrist, who was particularly asked to consider the sociological and psychological impact of granting the father parental responsibility (i) on the child, (ii) on the primary family unit, and (iii) on society's perception of the family; the expert's opinion was that the risks of the father having parental responsibility outweighed the benefits, although it was 'pretty finely balanced'.

On the issue of parental responsibility, the mother and her partner were entirely happy for the father to be recognised as the child's 'father' and for the child to see him for regular contact, but they did not agree to an order that, as they saw it, recognised him as the child's 'parent'. For his part, the father offered to undertake not to exercise his parental responsibility (if granted) to involve himself, without the mother and her partner's consent, in particular areas of the child's life where they might anticipate problems being caused, namely her medical treatment and her schooling.

The judge recognised that this application fell to be decided at a time of considerable change in the law affecting same-sex couples, and that the law was advancing at a pace which was probably quicker than the pace of change in the views of society in general, where new ways of living had not yet wholly crystallised and where language had not yet evolved to accommodate them.

The judge decided in favour of granting the father parental responsibility for the child. In view of the conditions that the father helpfully said he would accept, the order would be granted on the basis that he would not visit or contact the child's school for any purpose, or contact any health professional involved in her care, without the prior written consent of the mother or her partner.

The judge was anxious about whether making a parental responsibility order would be in the child's best interests, given the potential threat to the stability of the child's immediate family from what might loosely be called 'interference' from the father, as well as the impact on society's perception of the family if he were to use it to become more visible in the child's life. On the other hand, the authorities stress the status aspect of parental responsibility and indicate that it is not appropriate to refuse to grant it because of a feared misuse which should more properly be controlled by section 8 orders. Perhaps most importantly of all, the judge was considerably influenced by the reality that the applicant was the child's biological father.

Read the full text of the judgment here