Lesbian families, parenthood and contact

It is not so much the civil partnership legislation (hugely important though that is), but the increased social visibility and acceptability of same-sex relationships that will lead to the family courts dealing more and more with the problems of family breakdown in the gay and lesbian community. And it may come as a surprise to some that the problems and difficulties that same-sex families have are the same as those faced by the heterosexual community.

An unexceptional case

In July of this year the House of Lords handed down their opinions in In Re G (Children) [2006] UKHL 43. But for the gender of the couple, the circumstances were unexceptional. An unmarried couple had been bringing up two children since birth. But they separated when the younger child was one and the older child was three. Contact arrangements were put in place, but after some difficulties the parties (both of whom by now had new partners) went to court and these arrangements were bolstered by court order. The residence parent, in an attempt to marginalise the contact parent from the children’s life, and in direct defiance of the court order prohibiting this, then surreptitiously moved to a new town at some distance from the contact parent. The contact parent in response sought a shared residence order, and though this was refused at first instance it was granted by the Court of Appeal. The defying residence parent then appealed to the House of Lords.

The background to the children’s births was common enough in lesbian society, and is not unknown otherwise. Having decided that they wanted to have children as a couple, the parties had travelled abroad for the younger to be inseminated with anonymous donor sperm. So even although only one had a legal parental relationship with the children, both could be said to have been involved in the creation of the lives of the children.

There were two questions that had to be explored by the House of Lords: first, the weight to be given to the fact that one party had a biological connection to the children while the other party did not; and secondly, the appropriateness of altering residence arrangements as a response to the deliberate and unlawful acts of the residence parent in seeking to frustrate contact arrangements put in place by court order. The lead speech was given by Baroness Hale (who knows a thing or two about family law).

Importance of biological connection

Thorpe LJ in the Court of Appeal had rejected the proposition of the residence parent that “cogent reasons must exist if a court is to prefer the claims of a person who is not a child’s natural parent to one who is”. It has long been the law that there is no legal presumption in favour of the natural parents, because welfare is paramount. The House of Lords over three decades ago had held this in J v C [1970] AC 668, and a more recent application can be seen in the Court of Session decision in Osborne v Matthan (No 2) 1998 SLT 1264. Nevertheless in giving content to the welfare principle, there has long been an understanding that “maintaining the ties of nature” will tend to conduce to rather than detract from the child’s welfare. The Court of Appeal was overturned for not having given sufficient regard to this understanding: they had not paid enough attention to the fact of parenthood in assessing welfare. But what do we (or the courts) understand by that ambiguous concept, “parenthood”?

In her recognition that “parenthood” has multiple meanings, Lady Hale’s speech is one of the most radical family law opinions to come from the House of Lords in many years. She identifies (paras 33-35) three separate ways in which a person may be or become what she describes as the “natural parent of a child”: genetic, gestational, and social and psychological. A woman can be one, or two, or all three; a man can

be either one or two of these types of “parent”. Both parties in the instant case were “social and psychological parents” to the children at the centre of the dispute, and this is (Lady Hale suggests) as “natural” as genetic parenthood.

That assessment is as revolutionary as it is welcome; but it does introduce an unfortunate degree of ambiguity into her conclusion. At para 38, she resolved this part of the dispute as follows: the residence parent is “both their biological and their psychological parent. In the overall welfare judgment, that must count for something” (emphasis added). What is “that”? Is it that being biological parent must count, and being psychological parent must also but separately count, or only that being both must count, or that being both trumps being one? And does being the gestational parent count separately, or at all?

Lord Nicholls, in a short concurring speech, is clearer and more traditional (at para 2): “In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child’s best interests… I decry any tendency to diminish the significance of this factor”. Lord Scott too (at para 3) declared: “mothers are special”, and even although he accepted the children’s “other parent” was a good and loving mother too, the specialness he identifies clearly does not come from being social or psychological parent. Biology is a trump card, in other words, though the ace of trumps remains welfare.

In sum, the end result of this part of the case seems to be rather like the approach to the “maternal preference” argument in Brixey v Lynas 1997 SC(HL) 1 – it is neither a presumption nor a principle that children are best left with their biological parent, but is (as Lord Jauncey put it in Brixey in relation to the maternal preference) “recognition of a widely held belief based on practical experience and the workings of nature”.

Enforcing contact orders

The other issue, one of enduring political import, was how to enforce a contact order. The residence parent in this case had defied a court order by moving town, deliberately to make it difficult for contact to be maintained by the non-resident parent. Lady Hale accepted that the normal mechanisms for enforcing court orders are simply not appropriate in family disputes of this nature. She pointed out (para 43) that “in this particular case the mother had behaved very badly… it had been a terrible thing to do to the children” (flitting them in the middle of the night without warning or giving them a chance to say goodbye to their friends). Yet the Court of Appeal’s decision that the sole residence order be changed to a joint residence order, because the residence mother had shown she could not be trusted to obey the contact provisions in her residence order, was overturned. The residence parent had been obeying it since the present court action commenced, so there was now no reason to amend it.

Lady Hale did emphasise (para 45) that the residence parent “should now be in no doubt about… the possible consequences should she not adhere to the [contact] arrangements which we have ordered”. I am sure she isn’t in any doubt. She defied court orders in the past and the House of Lords has let her get away with it. Why should she have any doubt about their response to her defiance in the future? The judicial hope that a recalcitrant, disappearing, parent will be aware of the consequences of bad behaviour, together with an expectation that it would not be repeated, was expressed in almost identical words by Lord McEwan less than two weeks later in McG v McG [2006] CSOH 122 when he granted the recalcitrant parent a residence order.

Continuing grievance

The bottom line is that if the residence arrangements are in the child’s interests, they will not be altered by a court in order to enforce contact arrangements (also in the child’s interests): in the card game of child law, residence trumps contact. So the case illustrates again what we already knew, that some more imaginative approach is needed to ensure the enforcement of contact orders. The recent (English) Children and Adoption Act 2006 allows penalties for breach, such as community service and a requirement to attend classes to help recalcitrant parents to work through their difficulties. The matter exercised the Scottish Parliament (and particularly the lead committee) during the progress of the Family Law (Scotland) Act 2006, but the only change made to the existing law was to require courts who are considering making contact orders to take account of the likelihood of co-operation between the parties (s 11(7D) of the Children (Scotland) Act 1995, inserted by s 24 of the 2006 Act). This will do nothing to address the real issue, which remains a genuine grievance for all non-residence parents, including fathers and co-parents, gay, lesbian and straight.

Kenneth McK Norrie is a professor of law at Strathclyde University