Re G (Children) (Residence: Same-sex Partner)
| Jurisdiction | UK Non-devolved |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,LORD WALKER OF GESTINGTHORPE,BARONESS HALE OF RICHMOND |
| Judgment Date | 26 July 2006 |
| Neutral Citation | [2006] UKHL 43 |
| Court | House of Lords |
| Date | 26 July 2006 |
[2006] UKHL 43
Appellate Committee
Lord Nicholls of Birkenhead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
HOUSE OF LORDS
Appellants:
Peter Jackson QC
(Instructed by Family Law in Partnership for
Ashtons, Truro)
Respondents:
Stephen Cobb QC
Lorna Meyer
(Instructed by Bindman & Partners)
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree that, for the reasons she gives, this appeal should be allowed.
I wish to emphasise one point. In this case the dispute is not between two biological parents. The present unhappy dispute is between the children's mother and her former partner Ms CW. In this case, as in all cases concerning the upbringing of children, the court seeks to identify the course which is in the best interests of the children. Their welfare is the court's paramount consideration. 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, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or her biological parents without compelling reason. Where such a reason exists the judge should spell this out explicitly.
My Lords,
I had intended to write an opinion in this case but having had the advantage of reading in advance the opinion of my noble and learned friend Baroness Hale of Richmond I find myself so completely in agreement with the conclusion she has reached and her reasons for reaching it that an opinion from me would be otiose. I would simply say that in my opinion both Bracewell J and, in the Court of Appeal, Thorpe LJ failed to give the gestational, biological and psychological relationship between CG and the girls the weight that that relationship deserved. Mothers are special and, even after account is taken of CG's breach of the "residence" order (the justification for which I, for my part, doubt) and her reprehensible attitude towards the important relationship between the girls and CW, their other parent, CG was, on the evidence, a good and loving mother. I find myself unable to accept that the circumstances of this case came even close to justifying the judge's and the Court of Appeal's conclusion that the welfare of the girls required their primary home to be changed from that of their mother to that of CW. I concur in my noble and learned friend's opinion that this appeal must be allowed and that the order referred to in paragraph 45 of her opinion should be made.
My Lords,
I have had the advantage of considering the speech which my noble and learned friend, Baroness Hale of Richmond, is to deliver. I agree with it and with the speech of my noble and learned friend, Lord Nicholls of Birkenhead. For the reasons which they give I too would allow the appeal and make the order proposed.
My Lords,
I have had the privilege of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree with it and for the reasons that she gives I would allow this appeal.
My Lords,
The issues in this case arise in a novel context but they are issues which may arise whenever there are disputes about the future care and upbringing of children. The context is that of a lesbian couple who made the conscious decision to have children together, who together arranged for anonymous donor insemination at a clinic abroad, and who brought up the children together until their relationship broke down. Now, sadly, they are locked in a dispute about the future of those children which is just as bitter as the disputes which arise between heterosexual couples. And the issues arising are just the same as those which may arise between heterosexual couples. The legal principles are also the same.
There are two issues of principle. The first is the weight to be attached to the fact that one party is both the natural and legal parent of the child and the other is not. This will require us to explore the concept of "natural" parenthood and its significance both for the adults and for the child. The second is the approach to be adopted by the court where the party with whom the child has her principal home is reluctant to acknowledge the importance of the other party in the child's life.
The history
CG and CW lived together in a lesbian relationship from 1995 until 2002. They wanted to have a family together. When the relationship began CG was aged about 21 and CW about 36. They arranged for CG to be inseminated using sperm from an anonymous donor at a clinic abroad. (Many might see this as the more responsible choice, not only for safety reasons, but also to avoid the sort of confusion and conflict which arose in Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] 1 FCR 556. It does mean that the couple and their wider families are the only family that the child can at that stage have and in most cases this must be what they both intend.)
CG gave birth to two children, both girls. Child A was born on 2 February 1999 and is now aged seven. Child B was born on 25 June 2001 and is now aged five. Both were breast fed. CW has a son, C, who is now aged 17, born as a result of anonymous donor insemination during a previous relationship. It was agreed at an early stage in the proceedings that the girls have a positive relationship with him and regard him as their brother, and that he regards them as his sisters.
The relationship between CG and CW broke down in 2002 when CW began a relationship with her present partner, LP. They plan to enter into a civil partnership next month. But the family continued to live together in the family home in Shropshire until May 2003. Then CG and the girls moved into a property nearby. In July 2003, CW and LP began living together in the former family home. Also in the summer of 2003, CG began a relationship with a new partner, MG, who lived in Leicester. They have already registered their civil partnership, in December last year.
Proceedings began in September 2003, when CW applied for contact and a shared residence order. She was entitled to make such an application in relation to child A, who had lived with her for more than three years: see Children Act 1989, s 10(5)(b). But she required leave to apply in relation to child B, who was then only two years old. Leave was swiftly granted and an order made for interim contact two evenings a week and every other weekend. A CAFCASS officer, Mrs Barrow, was appointed to make a report.
At that stage, CG was training to be a teacher and had a placement at a school in Shropshire. The girls attended a nursery in the same town. But in November or December 2003 CG decided to move to MG's home in Leicester. She obtained a placement at a school in Leicester for the New Year and enrolled the girls in a nursery and school there. CW was not told or consulted about the move in advance.
In January 2004, in accordance with Mrs Barrow's recommendations, it was ordered that alternate weekend contact continue, with CW collecting the children from school and nursery on Friday afternoon and returning them on Monday morning, so that they could spend the whole of Sunday with C.
CW's applications were heard by Her Honour Judge Hughes over three days in June and November 2004. By that time, CG had qualified as a teacher but her partner MG was working from home and playing a major part in the children's care. Mrs Barrow's report confirmed that CG questioned CW's right to be involved in the children's lives and was opposed to a shared residence order which would confer parental responsibility upon CW. CW was now proposing that the children live with her in Shropshire. The girls clearly enjoyed life in both homes. Mrs Barrow recommended the continuation of the current arrangements, together with a move towards the equal sharing of school holidays. She also recommended a shared residence order:
"I would suggest that the importance and value of [CW's] role in their lives needs to be acknowledged…. I would suggest that such a move would help to ensure that [A] and [B] grown up with a better chance of understanding the complexity of their own identity and should not be seen as detracting from [CG's] role, as their main carer."
During the hearing in November, CG gave evidence that she wanted to move with MG and the children to Cornwall. Mrs Barrow's view was that this was not in the children's interests, as they were happy and settled with the present situation, which met their needs. The judge agreed with Mrs Barrow on this point and concluded that the proposed move was in part deliberately designed to frustrate the current contact arrangements. Accordingly she ordered that CG continue to live with the children in the Leicester area until further order. Such orders are only made in exceptional cases, as the courts generally regard them as "an unwarranted imposition upon the right of the parent to choose where he/she will live within the United Kingdom"; but where the children will live is one of the relevant factors in deciding with whom they should live: see Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638, at p 642.
The judge rejected the proposal for a shared residence order, largely because of the hostility between the parties. Nevertheless, she had no doubt that the children had developed a good and close relationship...
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