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Male friend can be third parent to lesbian couple's child

15 March 2012

Judges considering applications for parenting arrangements between same-sex couples and third-party sperm donors should place the child’s interest first and look at each case on its own merits, the Court of Appeal has ruled.

By relying on a line of authorities and a single research paper and then applying it as a general rule, a trial judge had made “a fundamental error”, Lord Justice Thorpe said in A v B and C [2012] EWCA Civ 285 (A v B and C [2012] EWCA Civ 285).

The case was brought by A, a male friend of B and C, a lesbian couple, as he sought to increase contact with M, the child born to B from A’s sperm.

The trio’s understanding that M would be brought up in the women’s home with A only having a secondary role was not officially recorded.

M’s conception and birth led to “cracks in the certainties that the parties had felt in optimism for the future” and A applied for a defined contact order.

“All cases are fact specific,” Thorpe LJ said, before adding: “In the end the only principle is the paramountcy of child welfare”.

He continued: “A’s involvement in the creation of M and his commitment to M from birth suggest that he may be seeking to offer a relationship of considerable value.

“It is generally accepted that a child gains by having two parents. It does not follow from that that the addition of a third is necessarily disadvantageous,” he concluded.

A’s appeal was targeted not at the order setting out the contact arrangement but at the observations by the trial judge which suggested that his involvement would always remain secondary. These observations, A argued, would prevent a court in the future to allow more frequent contact or agree to staying arrangements.

Allowing A’s appeal, Thorpe LJ said the sperm donor’s role should not be underestimated. “I do not endorse the concept of principal and secondary parent. It has the danger of demeaning the known donor and in some cases they may have an important role.”

While A was presently only a secondary carer, “I would certainly not categorise him as a secondary parent”, the senior judge said.

“The conclusion that Judge Jenkins should have reached was that the issue of whether the relationship between M and A should be encouraged to thrive and develop had to be decided by stages in the light of accumulating evidence,” he concluded. “There were too many unforeseeable factors to allow this judge to declare the future as definitely as he did”.

The case was remitted to the Family Division to determine in the light of further expert evidence and reports.

Thorpe LJ also invited the court to consider whether M should not be represented in the proceedings, to shift the focus from adult concerns to M himself.

In a concurring decision Lady Justice Black said that much as future parents in such circumstances should plan “in as much detail as they can” how they envisage they will bring up the child, “circumstances change and adjustments must be made”.

Above all, she said, “what must dictate is the welfare of the child and not the interests of the adults”.

Sir John Chadwick agreed.

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Marriage & Civil partnership Children