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Alternative Families and Children: A review of the recent case of A v B and C

Alex Verdan QC and Charles Hale, both of 4 Paper Buildings, counsel for the father in A v B and C, consider the lessons that can be learned by practitioners from the Court of Appeal judgment.

Alex Verdan QC, 4 Paper buildingsCharles Hale, barrister, 4 Paper Buildings

Alex Verdan QC and Charles Hale, 4 Paper Buildings

The recent Court of Appeal decision of A v B and C [2012] EWCA Civ 285, attracted much media interest. It has highlighted again the complicated and important legal issues arising in children cases concerning alternative families, i.e. with same sex parents: in particular, the relationship of such children with their fathers; the significance of pre-birth agreements relating to the adults' relationships with the children; and the weight to be given to the views of the primary carers. In this article we review the authorities in the area and consider how A v B and C has affected the landscape.

In A v B and C the Court of Appeal acknowledged that "the courts continue to struggle to evolve a principled approach" to such cases.  As Hedley J had already observed in ML and AR v RWB and SWB [2011] EWHC 3431 (Fam) (sub nom PL (Minors), this is "still new territory" where conventional models would not necessarily work and "a distinct concept of parenting and parental roles" was needed. A v B and C is the first time the Court of Appeal has considered whether and what general guidance can be given in such cases.

The facts were as follows. The appellant was the biological father of the child concerned, a boy now aged 2. The respondents were the biological mother and her long term lesbian partner. All three were high achieving, successful professionals with full time jobs. The boy was cared for in the respondents' household by a full time nanny. The father's spacious house was nearby. The three adults in the case were all homosexual and old friends. When the respondents wanted a child, they were very pleased when the appellant offered to father the child using AI or IVA.

The biological mother's strictly religious family had profound difficulties with the mother's sexual orientation and so with the respondents' same sex relationship. To make the arrival of a child easier the mother and father married. The purpose of the marriage was to create a seemingly conventional family into which a child might be born and to gain the mother's family's blessing.  However, the mother and father had no intention of co-habiting and it was always intended that any child should live in the household of the mother and her partner. It was agreed by all parties that they would be the primary carers for any child conceived. It was also agreed that the biological father would be acknowledged as such and would have a relationship with his son albeit not as a primary carer, and so a secondary one. What was not agreed was the extent of his relationship. The three adults had discussions and attempted to agree their respective roles and involvement in the child's life and each thought their respective positions were understood and agreed. After the child was born, however, there were increasing disagreements. The father expressed his wish for overnight contact at his home progressing to holidays with his son. The respondents did not agree.  They saw this as an intrusion into their family unit and not what they believed had been agreed pre-birth. The father applied for a defined contact order. The respondents' response was to apply for a joint residence order and a specific issue order to limit the father's exercise of parental responsibility.

It was a central part of the case that the respondents believed that any greater role for the father would encroach upon their relationship with the child as primary carers. They wished the autonomy of their family life to be protected and saw the father's claims as unsettling of that autonomy.  Their concern was that the father's perspective and desire for increasing contact would place the child in a separated family or post-divorce situation, which had never been their intention. They worried also about who would look after the boy if the biological mother were to die prematurely as her partner would not have automatic parental responsibility.  They feared the father would at that stage intervene with the greater authority in law that his parental responsibility brought.

At interlocutory case management hearings the court considered the need for independent expert evidence from either a psychiatrist or from Cafcass but on each occasion decided against such evidence. Instead the court allowed both parties to place before the trial court research papers relevant to the issues they saw were before it.

When the matter came before the circuit judge (sitting as a judge of the High Court) the principal issue for his determination was the frequency, nature and duration of the father's contact. What makes this case of particular interest and importance was the young age of the child. Previous cases dealing with contact and parental responsibility issues between a lesbian couple and a biological father have either involved older children where a pattern of contact and a division of responsibility had already been established over a number of years prior to the issuing of proceedings or have been applications by a biological father for PR as a first step to further contact.  In this case the court had been asked to rule at a very early stage in the child's life and before any arrangements had been in place for any significant period of time.   That raised potential new issues of principle that might govern the path of the child's life one way or another.  

After a four day hearing including oral evidence from the three parties, the circuit judge's decision was to increase slightly the duration of the father's visiting contact hours but he substantially upheld the case advanced by the respondents that the father's role in the child's life should for any foreseeable future be secondary: enough for the child to know who his father was but not so much as to undermine by frequent absence, what was described as, the nuclear family. The respondents had objected strongly to any staying contact between the child and his father and the circuit judge agreed, refusing the father any staying contact for the foreseeable future, meaning at least 3 to 4 years.

The father appealed. Permission was granted by Black LJ on the basis that the case raised important issues as to the court's approach to such cases and there was no existing Court of Appeal guidance. The full appeal came before Thorpe LJ, Black LJ and Sir John Chadwick in the Court of Appeal on the 3rd February 2012. In reserved judgments the appeal was unanimously allowed.

The Court of Appeal held that the judge's refusal to contemplate staying contact for 3-4 years was 'plainly wrong' as there were too many unforeseen factors to allow for the future to be declared so definitely or for contact to be so frozen.  The Court of Appeal explained that such a refusal, although not in the form of a section 91(14) order, was tantamount to a prohibition on any application for staying contact by the father without the court's permission and again was a manifest error.

In addition, the Court of Appeal held that it was a fundamental error of the trial judge to rely on non-specific research and existing 'alternative family' authorities so as to apply a 'general rule' which must apply to all disputes between two female parents and the identified male parent as all cases were so fact specific with the only principle being the 'paramountcy' one. This is an important statement and makes clear beyond doubt that there is no general rule in such cases. 

In grappling with the points raised by Black LJ in granting permission, the court accepted that this was a difficult area for the court but specifically declined to give any distinct guidance which would distinguish these cases beyond the universal and overriding principle of paramountcy and welfare.

Whilst not expressed as guidance, this is in fact exactly what the Court of Appeal has provided, recognising that all cases concerning children's welfare, including those of gay families, are fact specific and must be determined in accordance with the long established principles of welfare enshrined in section 1(3) of the Children Act 1989.  As a development of the jurisprudence the decision recognises that there can be no 'one size fits all' for alternative families where previously perhaps, first instance decisions such as Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] EWHC 2 (Fam), [2006] 1 FCR 556, Re B (Role of Biological Father) [2007] EWHC 1952 (Fam) (sub nom TJ v CV), [2008] 1 FLR 1015 and R v E and F [2010] EWHC 417, have seemed to suggest otherwise.  We suggest that in doing so the Court of Appeal has brought into line this area with the guidance given in the decisions of the House of Lords/Supreme Court in Re G [2006] UKHL 43, [2006] 1 WLR 2305 and Re B [2009] UKSC 5, [2009] 1 WLR 2496.

Specifically the previous decisions have variously attached:

i) more weight to the lesbian couple's desire to comprise the nuclear family and their fear that an increased role for the father would undermine their stability and so the child's; and

ii) more significance to ascertaining the parties' original pre-birth intentions/agreements in respect of responsibility and role and involvement of the father. 

In A v B and C the Court of Appeal was cautious about attaching great weight to adult autonomy and the plans that adults may seek to make for future relationships between the child and its parents before the child was even born.  Recognising that "human emotions are powerful and inconstant" the judgments confirmed that the reality of parenthood varies from person to person and cannot always be planned for or predicted. The court noted that adult plans and intentions "may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created." This human reality, of course, applies to all parents, hetero and same sex. No place here then for the equivalent to pre-nuptial agreements or similar when contemplating bringing children into the world.

The court did acknowledge that adults' pre-conception intentions were possibly relevant factors but they neither could nor should be determinative as plans change over time. The court advised that it was sensible for people who are intending to enter into an arrangement such as this one to consider and spell out in as much detail as they can what they contemplate will be the arrangements for the care and upbringing of their child. But the court made clear that no matter how detailed their agreement, no matter what formalities they adopt, this was not "a dry legal contract" and that "biology, human nature and the hand of fate were liable to undermine it and to confound their expectations." As circumstances change, adjustments must be made and, above all, the welfare of the child and not the interests of the adults must dictate.

In deciding what is in the child's best interests the court agreed that it may be important to identify the source of the child's nurture, stability and security. In some cases it will be derived predominantly from the family in the position of these respondents but in other cases the child may be used to being cared for by an amalgam of that family and the other parent or parents – the "three parents and two homes" regime. The court accepted that disruptions to that security and stability, even if arising indirectly because one of the adults is distressed, may be relevant as potentially harmful to the child. It was acknowledged that sometimes potential disruption will come from one of the parties to the proceedings, sometimes anxiety will be generated from outside, as where there is apprehension about society's response to the child's family arrangements or pressures from other family members.

The Court of Appeal made clear that particular consideration would also have to be given to the part that each adult can play in the child's life and consideration  be given to whether orders are available that may assist in addressing particular difficulties. Both in this case and in T v T (Joint Residence) [2010] EWCA Civ 1366, [2011] 1 FCR 267 a joint residence order was made in favour of the mother's partner (and ultimately conceded) in order to try to alleviate anxiety about arrangements should the biological mother die. The advantage of this of course was to make the adults feel more secure and foster a climate which in time might accommodate more generous contact than might otherwise be feasible. The Court of Appeal commended this approach to further cases.

So then without seeking to give specific guidance the Court of Appeal has made some significant observations which prospective gay parents and their advisers would do well to consider: 

The magic and emotion that surround the birth of a child can often be unimaginable let alone capable of being planned for.  The desire to have a family with a loved partner also creates significant and powerful emotions.  The Court of Appeal have emphasised in A v B and C that no matter how powerful the adult emotions, desires and perspectives, it is the welfare of the child throughout its life that must dominate the decisions about the future involvement of the adults around it. That is not a concept peculiar to any one family template.  As with single parents, courts should now be slow to accept as a matter of principle that two parents are any better at bringing up a child than three.  The family matrix and the dynamics that surround it are unique to the child. Whilst recognising that uniqueness, the Court of Appeal has re-stated in A v B and C that the best interests of the child will always be found in the proper application of the welfare principle.