Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Black |
| Judgment Date | 12 January 2006 |
| Neutral Citation | [2006] EWHC 2 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD05P00390 |
| Date | 12 January 2006 |
[2006] EWHC 2 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mrs Justice Black
Case No: FD05P00390
Ms Lucy Theis QC and Ms Abigail Bennett (instructed by Greene & Greene) for theApplicant
Mr Alan Inglis and Ms Haema Sundram (instructed by Lynch & Co) for the 1st and 2nd Respondents
Ms Tahera Ladak (instructed by Edwards Duthie) for the 3rd Respondent acting by her Guardian
Hearing dates: 28 November – 2 December 2005
This decision may be reported in anonymised form together with the decision in 2001, similarly in anonymised form. They will be known respectively as:
Re D (Contact and PR: Lesbian mothers and known father) No.2
Re D (Contact and PR: Lesbian mothers and known father) No.1
Mrs Justice Black :
D was born in 2000 and is now 5 years old. Her mother is Ms A. Her father is Mr B. She lives with her mother, her mother's long term partner, Ms C, and her half sister, E.
The circumstances of D's conception can be found set out in the judgment I gave concerning her in November 2001. In summary, Ms A and Ms C decided they would like to bring up a child together and, wanting the child to have a father figure in its life, they advertised for a man who would be interested in fathering a child. Mr B came forward and, after discussion, the decision was taken to go ahead. D was conceived following sexual intercourse between Ms A and Mr B.
As I explained in my earlier judgment, the arrangement presented more practical and emotional challenges than any of the adults had anticipated. They had not explored the ramifications of the plan sufficiently in advance.
The act of conception generated feelings between the three adults that played a significant part in throwing the plan substant ially off course at an early stage so that it was clear before the birth of the baby that there were problems. Ms A and Ms C felt that Mr B had turned out to be underhand and dangerous and was threatening their relationship. Mr B felt they considered he had fulfilled his purpose and was no longer needed.
From the outset, Mr B expected to be directly involved in the child's life. To a degree, Ms A and Ms C thought they wanted that too. Ms A told me their perfect scenario would probably have been for Mr B to see the child once every 3 or 4 weeks and perhaps more frequently if they turned out to become friends. However behind their apparently similar objectives, they were actually hoping for different things. Mr B was expecting something of the role of the absent parent after divorce who might share the child's leisure time equally with the child's mother and participate in decisions about the child whereas Ms A and Ms C intended that he should complement their primary care of the child by being a real father but by doing so through no more than relatively infrequent visits and benign and loving interest.
Everyone was very emotional following D's birth. As October 2000 wore on, Mr B took action for which I criticised him in my 2001 judgment. It included:
i) phoning excessively in an attempt to resolve things about D,
ii) sending frequent postcards lamenting his lack of contact and blaming Ms A and Ms C,
iii) indicating that when he came to court and got parental responsibility, Ms C would be out,
iv) trying to trace Ms A's mother by writing to all the people in the vicinity with Ms A's surname so that he could try to get her to mediate over contact and so that he could introduce himself to Ms A's family as D's father.
By the time the matter came before me in 2001 for determination of Mr B's application for contact with D and a parental responsibility order, there was a considerable degree of mistrust, resentment and uncertainty between the parties and they were all vulnerable. Ms A and Ms C felt that Mr B never stopped asking for more in relation to D and were worried that he would undermine D's security by pushing his role as her natural father and by denigrating their relationship and making her feel it was odd in some way. They also feared that contact with Mr B may impose irreparable stresses on their relationship. They considered that it would be in D's best interests not to have contact with Mr B until she was about 5 so that, amongst other things, she should have enough time to develop a proper sense of herself and how she fits in her family.
I took the view that it was unlikely that Mr B would drive a permanent wedge between Ms A and Ms C who were a thoughtful, perceptive, committed and loving couple whose relationship had stood the test of time. However, in the light of all the evidence, I could not dismiss as groundless the fear that Mr B may suggest that the situation of Ms A and Ms C as a lesbian couple was somehow wrong or that he may more generally prove to be a disruptive influence on D's life. When Mr B talked to the CAFCASS officer, Mr Weir, he had given Mr Weir a sense that he had in his mind a hierarchy which placed him, as a biological parent, ahead of Ms C. He said that he as D's father would have more to offer the child than Ms C, although he said he would not want to exclude her from "assisting in her care".
In making my decision concerning contact in 2001, I felt that it was very important to recognise that D's home is with her mother and Ms C and that that was where she would derive her primary security throughout her childhood. I considered that the order I made needed to be one which would not lead to the disruption of that security but would, so far as was possible, enable the relationship of Ms A and Ms C to grow and strengthen and D to develop a sense of their home as her primary home and an understanding of how the rest of her family fitted with that. I acknowledged that the fact that D would be being cared for by adults living in a lesbian relationship would introduce into her situation considerations – stresses possibly – that would not necessarily be present if her mother were in a heterosexual relationship. I said:
"Mr Weir anticipates that D, her mother and Ms C will face some discrimination at school. It seems to me that it may be more difficult for them than for heterosexual couples to establish themselves as a family, as the family which is providing the primary parenting for D. This difficulty may be in establishing their status to outsiders who they meet day to day in their lives, but there will also be work to be done with regard to Mr B's perception of them as a family and I think with regard to D's too. Not least D will have some extra questions about her background which children of heterosexual relationships do not. Ms A also spoke of the vulnerability that they feel because they are a lesbian couple with a considerable age difference between them."
However, Mr B was, in my view, another very important figure in her life. Normally, it is in a child's interests to have contact with her father where she is being brought up by her mother without him (or vice versa where the roles are reversed), although there may, of course, be particular features in a case that make this inappropriate. Here, I recognised that D would inevitably have many questions about her father and that there would be a great advantage in answering these to some extent by her having some contact with him. Provided it could be managed without significant disruption to her mother and her mother's relationship, it would contribute greatly to her selfesteem to know that she has a father who loves her and to see him from time to time.
Mr B's conduct in relation to D and her immediate family had not been helpful but, by November 2001, he accepted that he had made some stupid mistakes, led astray, he would say, by his emotions. I thought it early days to tell whether his emotions were yet sufficiently under control to enable him to hold back in his relations with D and whether he had arrived at a greater understanding of the importance of each of the adults in her life and of the relationship between Ms A and Ms C but I thought there were hopeful signs, including the fact that he had begun to attend counselling and was willing to continue to do so.
I made provision for limited monthly contact between D and her father to start very gradually at one hour with someone else present whom Ms A trusted, increasing after three visits to D and her father spending two hours on their own. The start of contact would be preceded by a period of further counselling for Mr B. In order to give Ms A and Ms C an additional sense of security, Mr B agreed also, at my suggestion, to undertake not to make any further applications in relation to contact for 12 months.
Since 2001, contact has been increased by the parties by agreement. D presently sees her father once each month for three and a half hours. There was a time when relations between the parties were rather better than they are now and contact lasted for up to six or seven hours at a time.
At the outset of this hearing, the parties were able to agree an increase in contact so that it will now take place every second Saturday in the month from 10 a.m. until 5 p.m. Mr B will go to D's home and they can either see each other there or go out together, depending on what she wants. There are also to be four extra outings of up to three or four hours which will take place at Easter, at Christmas, and twice during the summer holidays. Mr B wants the new plan to be seen as the arrangement for the next 12 months with the court reviewing contact (either at a fixed review or if he issues an application) at the end of that period with a view to increasing it. Ms A and Ms C would like the new arrangement to be seen as covering the next 3 years. I will...
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