Children update

Non-traditional families are increasingly common as society's values change and become more accepting of family structures which depart from the typical mum, dad and child/children format. The obvious cases concern adults in same-sex relationships who wish to complete their family units by raising a child within the unit. This can be achieved by adoption, surrogacy or insemination. There is a growing body of disputes in the family division which typically concern two mothers who are in a relationship, and have a child whose biological father seeks contact or more contact than the women say was originally agreed or envisaged. What is less common is disputes concerning opposite sex couples.

In Re H (A Child) [2012] EWCA Civ 281 the Court of Appeal was faced with just this. Mr and Mrs H could not have a child naturally as Mr H previously had a vasectomy. They sought assistance from Mr H's best friend, Mr W, to donate sperm for artificial insemination. That did not happen straight away and instead Mrs H and Mr W had a 'full-blown sexual relationship of regular intimacy' which, towards the end, resulted in conception.

After C's birth, there was contact between C and Mr W which later stopped. Mr W applied for parental responsibility (PR) and contact. A district judge heard three days of evidence and put a priority on C's welfare which led in turn to a priority on maintaining the stability of the relationship between Mr and Mrs H. He dismissed Mr W's application for contact on the basis that C's contact with Mr W was incompatible with that stability. The issue of PR fell away because of a rectification of C's birth certificate, which noted Mr W as C's father and thereby afforded him PR. Mr W's appeal was allowed by a circuit judge. Rather than remitting the case for reconsideration the circuit judge made clear in the judgment that direct contact should take place and directed that C be a party with a children's guardian appointed to make recommendations. Orders were made regarding the restarting of contact.

Proper evaluation of issues

Mr and Mrs H appealed. In the Court of Appeal, McFarlane LJ allowed the appeal. He did not believe that there was a proper evaluation of the range of important issues that should have been prominent in any welfare decision for C by the district judge. There was an over reliance given to the potential upset that might be caused to Mr and Mrs H's relationship if there were contact. As for the circuit judge, McFarlane LJ ruled that he too fell into the same trap by failing to conduct a welfare examination before ordering the reinstatement of direct contact although he was right to allow Mr W's appeal.

McFarlane LJ stated: 'It is of course a given, and a starting point for these courts, that children will normally benefit from having a full and meaningful relationship with both of their parents as they grow up. Whilst the original reason that Mrs H and Mr W first talked about the conception of a child was in a rather clinical context of potentially achieving that through artificial insemination, he was in fact born as a result of a full relationship that they had and there is a need for the District Judge to have approached Mr W and C's relationship with Mr W by giving that priority and then balancing it against the other issues in the case.'

That quote would suggest that the fact that C's conception came about as a result of a relationship between Mr W and Mrs H was a factor of priority. Of course that factor would not have existed if artificial insemination took place and there had been no relationship between Mr W and Mrs H. McFarlane LJ was also concerned that the Cafcass officer had to make recommendations in a vacuum because no findings as to the relationship had been made at that point. The correct approach was for the district judge to hear the evidence, decide the facts and then bring the Cafcass officer back into the equation to assist with further recommendations in light of the findings. Not to have dealt with matters in that way might have jeopardised an independent voice for the child being heard in the court process. The case will be heard afresh.

In A v B and C [2012] EWCA Civ 285, Thorpe LJ gave judgment in a dispute between, on the one hand the child (M)'s biological mother (B), and her lesbian partner (C) and on the other M's biological father (A). A, who is a gay man, appealed against the order of the circuit judge primarily on the basis of its characterisation of A having a limited relationship with M, and that there could not be staying contact at this stage. The judge also stated that he could not see the basis for [the refusal of] staying contact changing very much in the near future. Thorpe LJ held that all these cases are fact specific, the only principle was that the child's welfare is paramount and that while 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 was disappointed that M was not made a party such that his welfare could have been evaluated and advocated. He said that the published paper of Dr Sturge that the judge referred to was no substitute for a bespoke report which could have considered all the specific case factors.

Thorpe LJ expressed caution about submissions made by B and C's counsel that great weight should be attached to adult autonomy (the plans they made before conception) and that what adults look forward to before conception, on birth and during the first experience of parenting may prove to be illusion or fantasy. He went on to say that B and C's hope for a two-parent lesbian, nuclear family free from fracture resulting from contact with the third parent 'may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created.' Thorpe LJ expressly did not endorse the principal and secondary parenting concepts offered by Hedley J in ML & AR v RW & SW [2011] EWHC 2455 (Fam) as this risks demeaning the known donor. Interestingly, Thorpe LJ went on to say that: 'Although I understand the sense in which Hedley J defined the primary purpose of contact as being to reflect the role agreed or discerned from conduct, we must never forget that the primary purpose of such contact is to promote the welfare of the child.' Following Thorpe LJ's judgment, Black LJ gave her own short judgment in which she said: 'The adults' pre-conception intentions were relevant factors in this case but they neither could nor should be determinative.'

Expert reports from abroad

The instruction of experts in family proceedings continues to trouble policy makers, budget holders and the courts given the expense of reports and the delay that the instructions often introduce into proceedings where it is generally accepted that final decisions for children should be made as quickly as possible. The case of McC (A Child) [2012] EWCA Civ 165 diverts us from those usual dilemmas as final care and placement orders had already been made. An application for an adoption order had been made by the prospective adopters. Those proceedings were stayed pending the Court of Appeal's decision. The mother (as litigant in person) had issued an appeal against the welfare decision in the care proceedings but in the event the court was now dealing essentially with the mother's applications to adduce fresh medical evidence obtained by an American paediatrician. That preliminary report was only provided to the respondents on the day of the hearing. The court refused permission to adduce the expert report.

The following are useful reminders regarding expert reports and the obtaining of the same:

• Thorpe LJ was critical of the fact that the respondents were given 'no notice of the intention [of the mother] to go elsewhere and to knock on another expert door'.
• Permission had not been sought from the court to instruct another expert.
• Permission had not been sought from the court to disclose case papers to the expert. The papers that were disclosed were not comprehensive and were apparently partisan.
• Reference should be made, where instructing an expert from abroad, to the Family Justice Council's recent publication: Guidelines for the Instruction of Medical Experts from Overseas in Family Cases.
• The court emphasised that there is 'an obligation on an applicant for permission, or an appellant who has obtained permission, to seek leave from this court before instructing a fresh expert and releasing court papers to that expert for the purposes of the hearing of either an adjourned application for permission or an appeal'.

Religious discord

Re N (A Child: Religion: Jehovah's Witness) [2011] EWHC B26 (Fam) is a 2011 case but is considered here mainly for the practical guidance given by Judge Clifford Bellamy who heard the matter sitting as a Judge of the High Court. The matter concerned disputes about the child [N] regarding division of time with the parents, whether the father could take the child on holiday and the father's wish to restrict the mother's ability to involve N in the practice of her religion as a Jehovah's Witness.

In respect of the latter issue, the query for the court was 'though the mother's right to choose and practice her religion is not in doubt, the extent to which she is entitled to allow or encourage N to share in her religious beliefs and practices is less straightforward'. The judge set out a number of principles which he directed himself to. These are set out in full from the judgment:

a) Parental responsibility is joint and equal. Neither parent has a predominant right to choose a child's religious upbringing.

b) Where parents follow different religions, and those religions are both socially acceptable, the child should have the opportunity to learn about and experience both religions.

c) A parent's right to enable her child to learn about and experience his or her religion is not an unconfined right. Where the practice of that religion involves a lifestyle which conflicts with the lifestyle of the other parent and the court is satisfied that that conflict has had or may in the future have an impact on the child's welfare, the court is entitled to restrict the child's involvement in those practices.

d) Restrictions imposed for welfare reasons do not necessarily amount to a breach of that parent's right to follow the beliefs and practices of his or her religion provided that any restriction imposed is justified by the findings made by the court and proportionate.

e) In determining such an issue, as in the determination of any other question relating to the upbringing of the child, the child's welfare is the court's paramount consideration.