A v B and C
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,Black LJ,Sir John Chadwick |
| Judgment Date | 14 March 2012 |
| Neutral Citation | [2012] EWCA Civ 285 |
| Docket Number | Case No: B4/2011/2326 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 March 2012 |
[2012] EWCA Civ 285
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ROYAL COURTS OF JUSTICE
(HIS HONOUR JUDGE JENKINS (SITTING AS A JUDGE OF THE HIGH COURT))
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lady Justice Black
and
Sir John Chadwick
Case No: B4/2011/2326
CASE NUMBER FD10PO2567
Alex Verdan QC and Charles Hale (instructed by Kingsley Napley LLP) for the Appellant
Charles Howard QC and Madeleine Reardon (instructed by Hughes Fowler Carruthers Ltd) for the respondents
Hearing date: 3 February 2012
The Parties
The background
This appeal is brought with permission granted by My Lady, Black LJ. In her observation in granting permission on the papers she wrote that the case raises "important issues relating to the courts' approach to children born into 'alternative families' and the relationship of such children with their fathers". The appellant is A who is the biological father of the only child with whom we are concerned, namely M born on the 17 th September 2009.
The Respondents are B, M's biological mother, and C who is B's long term lesbian partner. They are professional women of considerable achievement. M is cared for in their household by a full time nanny. A's spacious house is not far distant. The relevant facts are unusual if not unique. The three adults in the case are all homosexual and old friends. When B and C wanted a child they were naturally delighted when A offered to be a sperm donor.
B, who comes from a religious family, has had difficulties in achieving its acceptance of her sexual orientation. To alleviate further difficulties that would ensue from conception and birth B and A married on the 7 th July 2007. The object of the marriage was to create a seemingly conventional family into which a child might be born. However, the couple had no intention of co-habiting and it was always intended that any child should be born into the household of B and C. They would be the primary care givers for any child and A, as the biological father, would be welcomed and acknowledged as such but otherwise his relationship with his son would be purely secondary. B and C were concerned that any greater role for A would encroach upon C's relationship with B and particularly the child. They worried about who would look after M if B were to die prematurely. They wanted that responsibility to rest with C.
There were of course discussions between the three adults which led to an understanding. The judgment which we review is the judgment of His Honour Judge Jenkins given on the 15 th July 2011. He held that B and C were consistent in the expression of their proposals and wishes. He held that, whilst A may have had a different perception of his role, all parties believed that their respective positions were understood and agreed. They therefore proceeded optimistically on the venture.
Conception occurred in December 2008 which led, in the judge's words, "to cracks in the certainties that the parties had felt in optimism for the future." Increasingly formal and fraught discussions ensued. By April 2009 A was expressing his anticipation of overnight contact at his home once a week from birth augmented by an annual holiday.
M's birth did not dissolve these difficulties. On 10 th November 2010 A applied for a defined contact order. On 19 November B and C responded with an application for a joint residence order and a specific issue order relating to A's exercise of parental responsibility.
There were interlocutory hearings before District Judge Cushing at the Principal Registry on the 13 th December 2010 and on the 21 st February 2011 before Mrs Justice Hogg.
Two points must be made on these interlocutory hearings. The first is that, at each, applications for the involvement of both CAFCASS and the well known expert, Dr Claire Sturge, were both refused. Secondly, Mrs Justice Hogg made an interim contact order extending A's time with M. This order was not appealed and at the final hearing before His Honour Judge Jenkins it was common ground that there should be a continuing contact order. The principal issue for the judge's determination was the frequency, nature and duration of the contact. Judge Jenkins heard evidence and submissions over the first four days of the week. He then delivered his extempore judgment on the following morning, Friday 15 th July. Although he slightly increased the duration of A's contact hours he substantially upheld the case advanced by B and C that A's role in M's life should for any foreseeable future be secondary, enough for M to know who his father was but not so much as to fracture by frequent absence what is described as the nuclear family.
The outcome
The order of the 15 th July by paragraph one granted a joint residence order to B and C. This was not in substantial dispute, although there are different views as to when it was conceded. It was of the utmost importance to B and C since it had the effect of conferring parental responsibility on C. Prior thereto, as a consequence of the marriage of convenience, parental responsibility had been confined to B and A.
Paragraph two set up A's contact, essentially one meeting a fortnight, the duration and the day of the week settled upon a six weekly cycle.
Applications for specific issue orders were either dismissed or not ordered.
The judge's conclusions were explained fully and skilfully and extended to some twenty pages. He made findings on the oral evidence of the three participants. Although he had no bespoke expert evidence he had the paper "Current Issues in Relation to Gay and Non-Biological Parenting" presented by Dr Claire Sturge at the 2007 Dartington Conferences published by Family Law under the title "Integrating Diversity" in 2008. He directed himself by citing relevant authority and then stated his conclusions. For the purposes of this review the critical paragraphs of his judgment are paragraphs 36 to 42 inclusive which I will cite in full:
" 36. In turning to the way in which decisions should be made in this case, it seems to me that those observations are crucial. In this case in fact, first of all, the father, however much he may wish it, is the biological but not the psychological parent. Whatever the unusual nature of the relationships in this particular case, and I say "unusual" without criticism, the relationships between the parties in this case are, in my judgment, crucial. By agreement with the father, a child was conceived and born and on the basis of a relationship already created where the two mothers were to be the primary carers. The evidence is that they had prepared over a long period for parenthood on that basis, and the evidence is that they have established a regime of security and stability. It is plain that all three parties failed to get to grips with the nature of the relationship. The father never managed to establish an agreement to his satisfaction and he failed in the end to appreciate the way in which the mothers had thought through the stability of the relationship in the way that I have described.
37. The situation that is referred to is not in any way analogous to a situation which has been referred to as the "divorce model". The father himself used the phrase at an early stage, seeing himself in the role of the separated parent but, in broad terms, in most cases where there is a separation between married or previously cohabiting parents a relationship has been established between the parent with whom the child is not living. The father, in my judgment, fails to appreciate the dynamics of causing a rift and break in the present relationship. The father has never lived with M and if he does get to a situation in contact where he does live with M that will make a significant alteration to the dynamics in which M has been successfully brought up for two years. There has never been an acceptance of the basics of the father's position, even if he made it plain, that there should be three parents and two homes. That is something that could be achieved possibly in a theoretical situation, but this is not that situation, and consideration of a contact regime appropriate to a divorce is inappropriate. The father has never lived with the child and unless the court orders it he is never likely to do so. In my judgment, that is crucial. Any benefit that might accrue from developing the relationship with the father to regular contact, shared holidays and a situation where in normal terms in these days a Shared Residence Order might be appropriate is not presenting this case. The father has done well with the child. That is his evidence and I accept it, but to try and develop the relationship to a full divorced parent type of relationship, in my judgment any benefit that accrues is likely to be outweighed by what I consider is likely to be confusion and disruption and the potential disruption of the relationship between the mothers and the child, and it is that relationship which provides the nurture, stability and security for M. That position is made more obvious by the particular anxieties which I have highlighted in this case, in particular the background of B and her family and the evidence establishes the particular stress and anxiety that the mothers feel and which goes beyond the question of litigation stress.
38. Therefore, fitting the matter into the welfare check list, it is plain that the father could in contact and in his relationship provide for M's physical needs and educational needs. He can make a contribution towards...
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