Madonna complex

Ever since the Children Act 1989 came into force, the courts have become used to applications by lesbian couples who have had a child together seeking an order for joint residence in order to obtain parental responsibility (see Re C (A Minor) (Residence Order: Lesbian Co-parents) [1994] Fam Law 468). The principal registry was still housed in Somerset House when, at the end of the one of the first cases in which I was instructed, DJ Conn turned to my client, not the birth parent, and said: 'Congratulations, you are now legally a mother.' It was a wonderful moment for both women.

That was a case where the women were still involved in a relationship and wanted to equalise as far as possible their rights and duties towards the child. But cases were already appearing in the lists involving women who had had children together and who were now separating. Usually, the issue was the role of the non-birth mother in the child's life. G v F (Contact and Shared Residence: Applications for leave) [1998] 2 FLR 799 indicated that after the separation of a lesbian couple, it was appropriate to grant leave for the non-biological mother to apply for
s 8 contact or residence orders.

However, the ground was still rocky for non-birth parents. Some birth mothers benefited from the 'mothers are special' paternalistic attitudes of the court to ease their erstwhile co-parent out of their children's lives. I have been in court when birth mothers have wept because of the stress incurred by the proceedings, and seen the judge
wilt as he (sic) looked at my client, who became, in his eyes, more bullying and socially unacceptable by the minute.

So when Thorpe LJ gave judgment in Re G (Children) [2005] EWCA Civ 462 it was a breath of fresh air. The judgment pulled together the strands of the earlier cases, 'the authorities that demonstrate the evolution of the judicial acceptance of the diversity of the family in modern society'.

History

A lesbian couple were in a relationship for eight years, during which time they had two children, conceived by artificial insemination by anonymous donor. Both women shared the care of the children. Their relationship broke down. At first the couple were able to continue sharing care, but as time went by things became more difficult and the non-birth mother, CW, felt her role in the children's lives was being diminished. She applied for a joint residence order which was refused. She appealed.

Granting a joint residence order, Thorpe LJ found:

'The parental responsibility order was '¦ the appropriate safeguard. The judge's finding required a clear and strong message to the mother that she could not achieve the elimination of Miss W, or even the reduction of Miss W from the other parent into some undefined family
connection'¦'

All seemed to be going well until the birth mother, abruptly and without notice to the children or to CW, moved the family from Leicester to Cornwall. CW went back to court. The crux of the case was whether the court could be confident that if the children stayed with CG that she would not further marginalise CW and seek to gradually eliminate CW from their lives? The guardian did not favour removing the children from the mother, but indicated that the final decision was for the judge, based on her findings about CG. A sole residence order was awarded to CW. CG appealed.

The mother's case was that the court below had not given sufficient weight to the role of the birth mother. It was argued that there were no compelling factors requiring the displacement of the children's 'right' to be brought up by their mother.

Thorpe LJ gave this argument short shrift. Earlier cases referred to in support of the mother's argument (including J v C [1970] AC 668, Re KD [1988] AC 806, Re D [1999] 1 FLR 134) were cases involving the biological parent or parents against some other contender for care. Describing children born through IVF using donated eggs fertilised by the father's sperm, a male homosexual couple having children through a surrogacy agreement, and a lesbian couple where each received IVF treatment using the eggs of the other, Thorpe LJ said:

'These instances simply demonstrate that we have moved into a world where norms that seemed safe 20 or more years ago no longer run.'

The 1989 Act, he reiterated, contained no provision of a presumption in favour of the natural parent and then posed the question: 'Who is the natural parent?'

"Where as here the care of the newborn and then the developing baby is broadly shared, the children will not distinguish between one woman and the other on the grounds of biological relationship.'

Finally, in view of the mother's behaviour, described by the children's guardian as an 'appalling' and a 'terrible' thing to do to the children, he upheld the order of Bracewell J, giving the non-birth mother sole residence.

It was this decision which went to the House of Lords (Re G (Children) (FC) [2006] UKHL 43).

House of Lords judgment

Baroness Hale identified the two issues of principle that arise in the case:

i) the weight to be attached to the fact that one party is both the natural and legal parent and the other is not; and

ii) the approach to be adopted by the court where the party with whom child has her principle home is reluctant to acknowledge the importance of the other party in the child's life.

These are two major problems that the courts have been grappling with for many years. My concern is that an opportunity to clarify the issues has been lost.

The Court of Appeal and the House of Lords were in fact, in broad agreement, both sharing the view that consideration of the birth mother/parent, while raising no presumption in her favour, is an important factor in determining what will be best for the children now and in the future, and secondly, that the mother's behaviour in moving to Cornwall was reprehensible.

However, the appeal was successful and the original order made by the first Court of Appeal decision was reinstated.

Significance of parenthood

Baroness Hale made the point that there is a difference between natural and legal parents. She continued:

'There are at least three ways in which a person may be or become a natural parent of a child'¦ The first is genetic parenthood: the provision of the gametes which produce the child'¦ The second is gestational parenthood: the conceiving and bearing of the child'¦ The third aspect is social and psychological parenthood:
the relationship which develops through the child demanding and the parent
providing for the child's needs.'

While it may be right that the term 'legal parent' does not tell us much about the importance of that person to the child's
welfare, it is clear to practitioners that the term 'natural parent' does not either. It
may be true that more fathers are now involved in caring for their children, but there are still many cases of non-resident
parents who are not consistent or reliable in relation to contact.

Baroness Hale's third group of 'natural parents' have no biological connection at all to their children. They are damned with faint praise. Those parents 'have an important contribution to make to [the children's] welfare'. They appear from that league table to be scarcely proper parents at all. 'CW is the children's psychological parent', but 'CG is '¦ both their biological and their psychological parent' (emphasis added).

Baroness Hale comments: 'Adoptive parents are the most obvious example [of social and psychological parents], but there are many others. This is the position of CW in this case.'

But it is a mistake to group all those other carers together '“ they also have different roles. Adoptive parents and foster parents are different sorts of parents, step-parents different again, as are gay men who have children through a surrogacy arrangement. Then there are the men whose wives or partners became pregnant through IVF with another man's sperm, and lesbian co-parents. These last two groups are very different as they are involved in the whole process, from conception through pregnancy, birth and beyond.

The House of Lords was silent on these issues, save in what it said about surrogacy:

'The mother who bears the child is legally the child's mother, whereas the mother who provided the egg is not: s 27, Human Fertilisation and Embryology Act 1990. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth'¦ brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.'

Their lordships have drawn a romantic aura around 'natural' (ie, birth) parents, setting them at the top of the carer hierarchy to the detriment of all the other loving, committed carers. In 21st century Britain, that simply cannot be right. What description should we give, for example, to the woman whose egg was implanted into another woman's womb and who carries out the caring of the child after birth?

But that is not the end of the story, because if we look closely we see a cavalier attitude even towards the genetic parent who doesn't fit.

The lesbian couple in Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] 1 FCR 556 conceived a child with a named donor.

Baroness Hale refers to the difficulties of the couple in Re D saying that CG and CW used an anonymous donor, which 'many might see'¦ 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. 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'. This is my own view, but I am conscious that the 'natural' father, whoever he maybe, whose virtues are extolled in para 33 of the judgment, is thereby dismissed.

If Bracewell J did not give any or sufficient indication of having considered the issue of the birth mother's role in a child's life, it may well have been because she was treating the two women as equals, which is how, as Thorpe LJ said, they will appear to the children.

The reluctant care sharer

Bracewell J's order was an order that most of us would have blanched at. To snatch children away from the 'custody' of their mother because the mother has breached the order highlights the age old dilemma in family cases '“ how can the courts deal with recalcitrant parents without hurting the children?

Baroness Hale relied on the advent of the Children and Adoption Act 2006 to resolve the dilemma. Of course the proposals in this Act '“ for enforcement orders where parents will be required to do a form of community service '“ suggest a possible way forward in dealing with this issue. But this does not
help CW.

Weaker party marginalised

Bracewell J's order, upheld by the Court of Appeal, was made when the mother was behaving very badly. It was a harsh decision and one that the House of Lords may have wanted to overturn. But the development of family law has not been well served by the basis on which that has been done.

One of the functions of the legal system must be to protect the weak. When a family is confronted by the state in public law proceedings, the parents are in a weak position. In a surrogacy situation, the woman who gives birth is the weaker person. The law seeks to give them as much protection as
possible.

The husband whose wife has undergone IVF treatment using donated sperm, the lesbian co-parent who has supported her partner through conception, pregnancy and birth, are also people (as are their children) who need the protection of the court. The Court of Appeal decisions in Re G sought to offer them that protection, but the House of Lords has marginalised them.

Society's views and attitudes have changed as described in the Court of Appeal decisions in Re G and yet the House of Lords has done little more than tell us that mothers are wonderful.

Elizabeth Woodcraft is a barrister practising from Tooks Chambers