Harcourt ChambersFamily Law Week Email SubscriptionAlpha Biolabs1 Garden CourtGarden CourtCoram Chamberswww.withlevel.comimage of 4 Paper Buildings logosite by Zehuti

Court of Appeal decides that lower court plainly wrong not to allow a biological father staying contact for the foreseeable future

Case raises "important issues relating to the courts’ approach to children born into ‘alternative families’”

The biological father of a two-year-old boy living with his lesbian mother and her partner has won the right to be involved in his life.

The judgment of the Court of Appeal in A v B and C [2012] EWCA Civ 285 has been heralded as a landmark decision in the court's approach to 'alternative families'. This appeal concerned contact arrangements in respect of the boy, M. The father had appealed against an order granting him limited contact. His appeal was allowed and the case was remitted for further consideration by a Family Division judge.

Lady Justice Black, when granting permission to appeal, had commented that the case raised "important issues relating to the courts' approach to children born into 'alternative families' and the relationship of such children with their fathers".

In the Court of Appeal the father was represented by Alex Verdan QC and Charles Hale both of 4 Paper Buildings (instructed by Kingsley Napley) and the respondents by Charles Howard QC and Madeleine Reardon both of 1 King's Bench Walk (instructed by Hughes Fowler Carruthers).

The facts
The respondents, a lesbian couple referred to as 'B' and 'C' in the judgment, wanted to have a child.  To their delight, 'A', the appellant, who was an old friend, offered himself as a sperm donor. A and B underwent a marriage of convenience but never intended to co-habit. Instead it was intended that  any child should be born into the household of B and C; B and C would be the primary care givers for any child; and A, as the biological father, would be welcomed and acknowledged as such but otherwise his relationship with his son would be  secondary. B and C were concerned that any greater role for A would encroach upon their  relationship with the child.

In the months leading up to the child's birth in September 2009 the parties began to have increasingly fraught discussions about the contact arrangements for the future child. A wanted to have overnight contact at his home once per week augmented by an annual holiday. In November 2010, A applied for a defined contact order and B and C responded with an application for both a joint residence order and a specific issue order relating to A's exercise of parental responsibility.

At the final hearing, HHJ Jenkins granted a joint residence order to B and C and set up A's contact, essentially visiting contact  once per fortnight, the duration and the day of the week settled upon a six weekly cycle with no foreseeable progression to staying contact. A appealed.

Court of Appeal judgment
Thorpe LJ stressed that all cases were fact specific, with the only principle being that of the paramountcy of the child's welfare. He concluded that a fundamental error in the Judge's approach was – by drawing on an historic paper by Dr Sturge, who was however  not instructed in the case, and recent decisions – to extract a a general rule which had to apply to all disputes between two female parents and the identified male parent.

Thorpe LJ said:

"It is generally accepted that a child gains by having two parents. It does not follow from that the addition of a third is necessarily disadvantageous."

Whilst B and C were clearly the primary carers and A was only on the threshold of providing secondary care, Lord Justice Thorpe considered that A should not be classed as a secondary parent. The question as to whether A should cross that threshold was likely to be decided by a judge in the future.

Lady Justice Black said that particular consideration would have to be given to the part that each adult could play in the child's life. The child's emotional need for B was probably self evident on the facts but the judge at first instance had also recognised C's importance in the equation, and the part that A had to play.

The case was remitted for further consideration by a Family Division judge.

Alex Verdan QC, who together with Charles Hale acted for the father, comments: 

"The Court of Appeal declined to give any further general guidance, preferring instead to reinforce the importance of the application of the welfare checklist to disputes concerning children of an alternative family as it applies to every other case.  The primary concern must remain the welfare of the child, not the interests of the adults concerned, however well considered and intentioned.  No pre-birth agreement can oust the jurisdiction of the Court to determine welfare when the parents, be they biological or psychological, cannot agree. Ultimately each case turns on its own facts without assumptions or presumptions as to what is the best for any given child born into any particular family. The disapproval by the Court of Appeal of the term 'secondary parent' must be an important development for all fathers in this situation."