Tuesday, 20 March 2012

Designer Families 2 - Now that didn't take long, did it?

Family Law Week has just produced the judgment in the case I mentioned in an earlier blog - the Court of Appeal has decided an appeal by a father against the very limited contact he was permitted with his child who lived with her lesbian mother her mother's long term partner.

You can see the earlier blog here: Designer families - can they ever work

I ended that post by asking the question, do I need to change my advice to clients?  Is it now the case that what parents decide should be the caring regime for a child prior to birth should become a key factor in how the court determines the appropriate order to be made in Children Act proceedings?  Well now we know the answer - it's no!  I can carry on just as before.

The report is now on bailii and is quite short and digestible -  A v. B and another

The oddity of the case at appeal is that there was actually no appeal against the order - just the judgment, the reasons for the order.  In other words, the father didn't take issue with the amount or frequency of the contact ordered for the present, what he was unhappy with was the implications of the judge's thinking for future increases in his involvement in his child's life.  The Court of Appeal shared those concerns.

Firstly, the recent idea of Hedley J to think of parenting in terms of principal and secondary carers has already been discarded.  Thorpe LJ says of this, "I would not endorse the concept of principal and secondary parents. It has the danger of demeaning the known donor and in some cases they may have an important role. In the present case some would say that the primary carer is the full-time nanny."

Secondly, it highlights the inherent weakness of limiting parenting to function or time spent.  That really is the effect of that last sentence.  It's the nanny who provides the majority of the hands on caring - how can we define the importance of a parent in terms of who picks up and drops off, who gets up in the middle of the night, who reads with the child and so forth?  A good parent may well do all these things, but so, perhaps, does a good nanny!

Most importantly, for me at least, is the point about parents making their own plans before the child is conceived and then being forced to stick with them.  Not so, says Thorpe LJ, and for me this is by far the most predictable element of the judgment - how could it be different?  "I am cautious in reaction to Mr Howard's repeated submissions that great weight should be attached to adult autonomy and the plans that adults make for future relationships between the child and the relevant adults. Human emotions are powerful and inconstant. What the adults look forward to before undertaking the hazards of conception, birth and the first experience of parenting may prove to be illusion or fantasy. B and C may have had the desire to create a two parent lesbian nuclear family completely intact and free from fracture resulting from contact with the third parent. But such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created."  In other words, it's all about the welfare of the child, not the plans of his/her parents - and there's nothing revolutionary about that now is there?

One thing I found quite encouraging too was the Court's readiness to hear and allow an appeal even though it wasn't seeking a variation of the order itself, merely the reasoning behind it.  Sometimes a judge can make the right decision but for the wrong reasons.  However, that on its own won't be enough of a reason for appealing the decision.  The key point in this case was that using the wrong reasoning was almost inevitably going to lead to complications for the future care of this child.  That's why the appeal was both heard and successful.





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