Monday, 20 February 2012

Designer families - can they ever work?

Two recent cases have brought before the courts what you might term designer families.  The more recent of these is awaiting a decision of the Court of Appeal, as reported by the Telegraph here:

Lesbian couple and the gay father

and concerns the care of a baby born to one of a lesbian couple, a homosexual friend being the father.

The earlier one, which has been troubling Hedley J for some little time, involves a homosexual couple and a lesbian couple and the care of two little girls whose father is one of the homosexuals.

P and L (1)

P and L (2)

Both these cases involve unconventional families, by which I mean that convention hitherto has meant one father, one mother and their various children.  Of course it could be argued that statistically there is now a new, additional convention, namely two separated parents, two step parents and their children by previous relationships and possibly by the current one.  However interpreted, they are defined by heterosexual relationships of varying permanence or duration.

Doing family differently

These two cases, however, demonstrate couples who are in settled long term relationships but, being same sex,  cannot biologically produce children.  Some external input is needed for this to happen and so a rather more planned approach has to be taken.  In these two cases, the lesbian couple, when planning to start a family, decided that rather than go down the route of anonymous sperm donor, they wanted to know the father and for the father to have some sort of involvement in the child's life.  Where the problems have arisen is that the fathers have a different version of what was agreed or expected.

I can't say that I blame the parties - to insist on reaching a written agreement before arranging the pregnancy seems even more calculating than entering into a prenuptial agreement.  What's more, it couldn't be binding in any legal sense because a court being asked to exercise its Children Act powers in relation to such a child can and will only make orders which are in the child's best interests, regardless of what its parents may have previously agreed.

The worst form of equality?

Tragically, it seems that just as with heterosexual parents, same sex parents can also act according to their own preconceptions and wishes and neglect the child's best interests.  ML and another v. RW and another, the Hedley J case, seems to have been particularly difficult.  Here we have two girls, aged 10 and 6.  A lesbian couple of longstanding and in a civil partnership sought a homosexual father for the children they planned.  They intended that person to have involvement in their children's lives.  They found a homosexual couple, also of longstanding, one of whom would be the biological father of the children.  After some years, and the birth of the two children, the relationship between the couples fell apart and as things are now, the person sorting out contact has described the older girl as being very disturbed indeed by how things now are between the adults in her life.

"I felt, as she spoke me, the horrendous tangle of emotion and conflict that exists between these adults and saw the reality of the way in which their agreement to have P has resulted in such misery for her. The misery is not because of the way in which she was created, it is because these adults and their failure to manage their own conflicting feelings, reactions and personal baggage have handed over the responsibility for coping with the mess to P." (my emphasis).

Equal inability to prioritise a child's needs is not an equality to strive after!

How to plan the new family structure

The judge describes the adults as being intelligent professional people.  Perhaps the key part of his first judgment is as follows:

"As I have thought about this case, I have tried hard to see whether there are any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases. The best that I have achieved, and I confess to having found it helpful in thinking about this case, is to contemplate the concept of principal and secondary parenting. The reason why this case is not equivalent to a separated parent is that there was a clear agreement that the respondents would do the principal parenting and that they would provide the two-parent care to these children. The second respondent clearly believes that her role in this regard has been brought into question, and it is certainly my view that her role in the concept of principal parenting, as one of the two principal parents, needs to be clearly affirmed and respected." 

In his second judgment, Hedley J describes the family planning process in these terms:  "The difficulty is that there are really no restraints on what parties can choose to agree should be their respective roles. At one extreme parties freely agree that the male role will be limited to identity which need not necessarily involve any direct contact at all. At the other, a woman, particularly if single, may seek an arrangement closely aligned to an involved but separated father typical of a traditional arrangement - and, of course, anything in between."

Sadly, contact between the second couple and the older child had, by the time of this hearing, broken down completely.  The judge exhorted the adults, " Undoubtedly, the best route for these children is one that only the four adults in their life can deliver. This involves them re-reflecting over the last 12 years in the light of all that is said and has been said in the course of this hearing and seeking to recover the concepts with which, as I found it, they set out, namely a clear acknowledgement that the principal parenting role, the two parent role, if you like, belongs to the respondents, but the applicants have a real, albeit secondary, parenting role."

In his second judgment he gives guidance to those contemplating and planning an alternative family structure:
"Accordingly the only guidance that I feel able to give is threefold: first to stress the importance of agreeing the future roles of the parties before the first child is born; secondly, to warn against the use of stereotypes from traditional family models and in particular to resist the temptation to squeeze a given set of facts to fit such a model; and thirdly, to provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties."

And how not to!

You see, what is clear both from this case, and the more recent one reported in the Telegraph, is that alternative families are still trying to force themselves into the mould of traditional families.  Hedley J describes the primary parents this way - " they feel that any contact order beyond their proposal is an invasion of the life of the nuclear family. In the traditional model they would have a point; that is why grandparents and other relatives usually need the permission of the court to apply for contact. But they do not have a nuclear family in the traditional sense; their model does not encompass what these parties chose to agree and do in this case even though the women are and must remain the principal parents."

The case reported in the Telegraph looks very much like a rerun of the Hedley case in some ways.  It involves " highly-paid professionals living in central London."  The father's counsel has exhorted the court against ""importing traditional or stereotypical models", which shouldn't be too difficult, given Hedley J's comments.  By contrast, the mother's counsel is recorded as saying,

"It is right that that agreement was reached; the court has to show more than lipservice to it and must give it considerable weight, otherwise there's no point having such an agreement."

"Notwithstanding their sexuality and that they acknowledge to that extent that they are an 'alternative family', the mother and her partner hold very traditional views of family life and would not have chosen to bring a child into anything other than an intact, two-parent, family."

"The ideal upbringing for a child is a stable home in which the parents love each other and had together chosen to bring a child into the world. This is the upbringing which the mother and her partner always wanted to create for this little boy."

"Their choice of family life for their child should be respected."

A new and exclusive test for alternative families?

So on the Hedley test, there is a stage to go through in disputes involving alternative family structures which just doesn't exist with the conventional models - what did the parents agree would be the involvement of the various adults? 

So here is the key question for debate - to what extent should parents be entitled to plan and determine exactly what family structure should be provided for their children, where they are dependent on an outsider to achieve that family?  And how far should an agreement made prior to a child's birth determine the nature and extent of the relationship he/she may have with a biological parent?

For years I have advised clients that there's no such thing as legally binding or final agreement about child care arrangements, as a court will only ever order what is in the child's best interests, when objectively viewed.  Do I need to change that advice?

Blog Disclaimer: Nothing in blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.


  1. Hard cases make bad law. The problem is that the law is trying to cope with all kinds of family scenarios, which it cannot. The bottom line is that if a child is born into a relationship that is not a committed loving relationship, between the parents there will be trouble - certainly for the child. The law should try to stop this kind of thing happening in the first place. By making it illegal to create a child outside of a loving committed relationship between it's natural parents. Controversial, I know, but fundamentally sound. The law should be based upon the best interests of the child.

  2. There are many family law solicitors that will look at your family situation as unique and offer the best help they can but as this case seems to prove some are just hard, period.

  3. Only just noticed your comment Pauline - cheeky!

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