RE G (CHILDREN) [2006] UKHL 43, 26.7.06, 2 FLR 629

http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060726/child-1.htm

This case concerned two children aged 7 & 5 who had been born to a lesbian couple as a result of artificial insemination. CG was the biological mother. The other parent, CW also had a son from a previous relationship, also conceived by donor insemination. The relationship ended in 2002 and by the time of the hearing both parties were in new relationships. CW applied for contact and shared residence post-separation. A good pattern of staying contact was established. At the hearing of CW’s application, CG indicated to the court that she wished to move with the child to Cornwall. The Cafcass Officer recommended against this and was concerned, as was the court, that the move was in part designed to undermine contact. The Judge rejected the idea of shared residence because of the hostility between the parties but made orders for extensive contact to CW and imposed a condition on CG’s residence order that she continue to live in Leicester. CW appealed to the Court of Appeal (see Re G (Residence: Same-Sex Partner) [2005] 2 FLR 957) which substituted a shared residence order for the sole residence order. CG then sought agreement to the move to Cornwall through solicitors but it was not forthcoming. Despite this and in clear breach of the order, she and her partner took the child to Cornwall without warning and applications under the FLA 1986 had to be obtained to trace the child’s whereabouts. CG applied for the residence restriction to be lifted; CW asked the court to reverse the time division between the households under the shared residence order. Contact arrangements were restored and adhered to on an interim basis. A different Cafcass Officer who had forged a reasonably good relationship with both parties gave evidence. He recommended that notwithstanding CG’s behaviour, the child should stay with her and a family assistance order should be made. He was concerned by CG’s live evidence but still recommended on balance that the child should stay with the biological mother who had always been the main carer. The High Court Judge disagreed with this recommendation, particularly because she did not think that CG would maintain contact at a level which would promote the essential close relationship to CW. The Court of Appeal upheld this decision. CG’s argument to the House of Lords was that insufficient account had been taken of the role of CG as both biological and psychological parent.

Held:

Baroness Hale conducted an analysis on biological parents both pre and post-Children Act 1989 in the context of the changing nature of family life. The HL concluded that the lower courts had allowed themselves to be distracted by the unusual factual context of the case and had placed insufficient emphasis on the importance of the role of biological and psychological parent which were both fulfilled by CG (though this did not mean that biological parenting raised a presumption in favour of the biological parent). Secondly, the fact was that CG, despite her previously reprehensible behaviour, was maintaining the important relationship with CW through contact and therefore there was not a good enough reason to change the child’s living arrangements.