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21 April 2017

24: Modern families, modern problems

Family judges are well used to making decisions regulating a child’s upbringing, for example determining where a child should live and how much time he or she should spend with each parent, but modern relationships continue to throw up interesting problems that the court has to grapple with. The Court of Appeal recently had to deal with such a case involving a 20 month old boy, Z.

For understandable reasons the judgment of the Court of Appeal is anonymised and therefore reads rather like ‘alphabetti spaghetti’. Lady Justice Black described the history as being ‘complex’.

The dispute was between two men, A and B, and Z’s mother, X and her partner, P.

A and B were a homosexual couple in a civil partnership. They were the fathers of twins, who were born in 2013 as a result of a surrogacy arrangement with V. A and B subsequently fell out with V. They also wished to have further children using the gametes of the woman who had donated the eggs for the conception of the twins and sought a different surrogate to help them with the process. They were introduced to X through a surrogacy site run or administered by W and others. A and X travelled to Cyprus for the transfer of the two embryos to X. Although initially the process was successful, one of the foetuses miscarried, leaving only Z. X, encouraged by W, informed A and B that she had miscarried both foetuses. Subsequently however, W told A and B that X was in fact still pregnant with Z.

Z was born at the end of June 2015. A and B still wanted to be his parents but it became apparent that X was not prepared to let A and B look after Z. A and B therefore made an application to court for an order that Z live with them. The judge who heard that application ordered that Z should live with X and P but should spend time with A and B every two months. A and B appealed.

The main issue was whether the judge had failed to address the long term welfare decisions about Z in a holistic way and to carry out a proper balancing exercise when engaging in the welfare analysis of Z’s needs. A and B argued that the judge’s consideration of the welfare issues was unbalanced and incomplete because the merits of each option for Z were not analysed in a ‘comparative and measured way’. It was submitted that the judge had ignored or given insufficient weight to the many positive characteristics of A and B and what they saw as X’s negative characteristics. Moreover, it was argued that insufficient importance had been attached to the so-called ‘genetic tie’.

In cases involving children, what is all important is what is in their best interests. What outcome best promotes their welfare? The court dealing with the appeal decided that the judge’s welfare analysis had been a proper consideration of the realistic options for Z, in which she had weighed and balanced all the relevant factors in relation to A and B on the one hand and X and P on the other, and had reached a decision on the basis of what was in Z’s overall best interests. A careful consideration of the judgment did not bear out the criticisms made by A and B.

Of central importance for the judge’s decision was that, as X was no longer prepared to consent to a parental order in favour of A and B in relation to Z, her role in his life would not only be historical, it would continue into the future. The judge had carried out a thorough investigation of X’s family and social history and her parenting ability. She had found that X and P had limited financial resources but that ‘the guardian has described the atmosphere in their home as loving and joyful’. Despite the criticisms made by A and B Z was being properly cared for by X and her partner.

The Court of Appeal concluded that the judge had undoubtedly paid proper attention to the genetic tie but she had set it in the context that Z and lived with X from birth and ‘has a bond with her as his de facto and gestational parent’. She rightly observed that the genetic tie was a factor to be balanced against the others in the decision making process but was not a trump card. The judge had been entitled to put weight on the fact that separation from X would have a detrimental impact on Z and to conclude that, in this particular case, the genetic considerations did not justify a move.

In the circumstances the appeal against the original order would be dismissed except in relation to parental responsibility. In respect of that, the appeal would be allowed and an order made giving B parental responsibility for Z as well as A.

The principles ‘in play’ in this case are not new. The ‘welfare principle’ has been at the heart of judicial decision making in respect of children since the introduction of the Children Act 1989 but this case illustrates how such principles are applied to modern family arrangements not contemplated almost 30 years ago.

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