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Re G - Changing the Face of Parenthood?

Abigail Bennett of 3 Dr Johnson's Buildings analyses the recent House of Lords decision in Re G [2006] UKHL 43 and its impact on contact in same - sex relationships.

Abigail Bennett - 3, Dr Johnson's Buildings

Re G [2006] UKHL 43 was a decision awaited with a high level of interest, addressing as it did a key issue for the concept of 'family' - how important is the biological relationship between child and parent? More specifically, how does the biological status of parenthood sit within more diverse family units? Can a biological parent ever be displaced in favour of a parent who has no blood relationship to the child in question?

The most familiar context in which these questions have been addressed most recently is within the same-sex family. Re G concerned two women who lived together in a lesbian relationship for 7 years. Following their decision to have children together, the younger of the two, CG, was inseminated using sperm from an anonymous donor. There followed the birth of two girls, Child A in 1999, and Child B in 2001. The non-biological parent, CW, already had a 17 year old son from a former relationship, also conceived as a result of anonymous donor insemination, and all three children were brought up as siblings.

The relationship between CG and CW broke down in 2002, when CW formed a relationship with another partner. Following separation, CG and the girls moved into another property, with CW remaining in the former family home. Proceedings began in 2003, when CW applied for contact and shared residence orders. Thereafter, CG took the first of a series of unilateral decisions regarding the girls. She re-located to her new partner's home, enrolling the children in a new nursery. CW, in accordance with CAFCASS recommendations, continued to have alternate weekend staying contact from Friday after nursery, until Monday mornings. However, CG began to question CW's role in the children's lives, more particularly opposing the parental responsibility that shared residence would confer upon her.

At the final hearing, CG gave evidence that she wished to move to Cornwall with her partner and the children. The CAFCASS Officer was against this idea, feeling the children had a happy and settled situation based on the sharing of time between both homes. The Judge agreed, and made a finding that the decision to move was partly based on a wish to frustrate contact arrangements between the children and CW. She took the unusual step of ordering CG to remain living in her current area until further order. The shared residence order was refused (in part due to the hostility between the parties), but the Judge ordered good quality frequent staying contact. An order was made requiring CW to be informed about the girls' medical treatment and education.

CW appealed to the Court of Appeal against the refusal of the shared residence order (Re G (Residence: Same-Sex Partner) [2005] 2 FLR 957). Thorpe LJ allowed the appeal, making the shared residence order on the basis that the trial Judge's findings that there had been attempts by CG to marginalise CW, led logically to the conclusion that a clear message needed to be sent to the biological mother that she could not 'achieve the elimination of Miss W, or even the reduction of Miss W from the other parent into some undefined family connection'. The order requiring CG to remain living in her current area was expressly affirmed.

Only one month later, after her written request to CW's solicitor's asking to move the children to Cornwall had been refused, and in clear contravention of the Court order, CG took the children to live in Cornwall without informing CW. CW issued an application pursuant to the Family Law Act 1986 to locate the children, resulting in a transfer to the High Court and the appointment of a Children's Guardian. CG belatedly applied for the living restriction to be lifted, and CW applied for a sole residence order in her favour. In the interim, contact arrangements were agreed along the lines of the previous order. The hearing was before Bracewell J. It is at this point that CG's non-compliance with orders could perhaps be considered to have become a distraction from the broader and more fundamental issues that this article serves to explore. A large proportion of the Court's focus centred on CG's ability to comply with orders in the future, and this was a particular concern of the guardian. However, he concluded that the risk of emotional harm to the children if they were moved from CG's care, outweighed the potential risk of CG continuing in her efforts to erode CW's role in their lives.

It is worth noting that at every level of judical intervention in this case, the Court gave its full endorsement to the crucial 'parental' role that a non-biological parent can play in a child's life. The fundamental importance of CW to these children was not in doubt (save perhaps in the mind of CG). What became the central question posed by Bracewell J was whether or not the emotional harm consequent on moving these children from CG to CW was outweighed by the risk of their being deprived a relationship with CW. The judge, rejecting the Guardian's views, concluded that it was. It was her finding that she could have no confidence that if the children remained in Cornwall with CG the latter would promote the children's relationship with CW and her family. Accordingly, the Judge continued the shared residence order, but reversed the times spent under it, so that the children spent the majority of term-time with CW.

CG appealed to the Court of Appeal, where her appeal was dismissed (Re G [2006] EWCA Civ 372). Whilst accepting the proposition that "the identity of a child's natural (biological) parents is always a matter of significance", Thorpe LJ concluded that the judge was fully entitled to conclude that she could not place reliance on CG's ability to obey with court orders, and make the order she did. However, at this stage judicial discomfort with the proposition of removing a child from its biological parent can be detected in the comments of Hallet LJ:

"I am very concerned at the prospect of removing these children from the primary care of their only identifiable biological parent……. Mindful as I am of the changing social and legal climate, on the facts of this case, I would attach greater significance perhaps than some to the biological link between the appellant and her children."

The House of Lords, led by Baroness Hale of Richmond, found that the High Court and Court of Appeal had not taken anywhere near sufficient account of the fact that the appellant was the biological mother of the children. The Court reversed the terms of the shared residence order back once more to the original arrangements. The difficulty of this case was to a large extent, its novel facts. Would the Court have considered the possibility of changing residence to the non-biological parent if CG had fully appreciated and nurtured her daughter's relationship with CW? I think the answer to this is an emphatic 'no'. Take the comments of Baroness Hale in her judgment:

"I am driven to the conclusion that the courts below have allowed the unusual context of this case to distract them from principles of universal application. First, the fact that CG is the natural mother of these children in every sense of the term, while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what is best for them now and in the future."

In my view, the judgment also contains a helpful analysis of how to define different types of parenthood. Such definitions can be extremely complex, a point perhaps most clearly demonstrated in Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] 1 FCR 556, in which I was led by Lucy Theis QC on behalf of the father. In that case the use of a 'known' donor by a lesbian couple to conceive their daughter left the Court with three parents, each with very different expectations of how their role within the child's life should be defined. Baroness Hale draws a useful distinction between what she describes as 'psychological' parents, and what we commonly think of as 'biological parenthood'. The concept of 'psychological parenthood' is derived from the work of Goldstein, Freud and Solnit in 'Beyond the Best Interests of the Child' (1973), who defined it thus:

"A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs."

Clearly CW was a 'psychological parent'. In Re D both the child's biological and non-biological mothers fitted that role, but less easy to define was the role of the biological father. However, one clear principle emerges from both these cases and the existing case law, and one that is not all that surprising. The role of the biological parent is an important and significant factor in determining a child's best interests, and in the situation of a same-sex couple who decide to have a child together, not one that is easy to displace.

Whilst the implications of the decision in Re G may seem to be limited, given that it endorses to a great extent what has gone before, I think that within the ambit of same-sex relationships (and other potential family configurations), the impact will be felt. In my view it makes the decision as to who biologically parents a child within a same sex relationship a crucial and potentially difficult question. In real terms, how secure can the non-biological parent of a child after same-sex relationship breakdown feel? To some extent there is reassurance - we must remember that the resulting order in Re G was a shared residence order. Furthermore, in Re D the court took the unusual step of obtaining expert psychiatric evidence from Dr Sturge, dealing with the impact on the child of the relationships around her. This evidence highlighted particular concern for the position of vulnerability of the non-biological parent and the potential impact of that vulnerability on the child. But in reality, one may feel as I do that the Courts may have increasing challenges ahead as family relationships within society continue to evolve.