The judicial approach to alternative families: discrimination or vive la difference?

28 August 2012

Duncan Ranton and Chris McIntosh

Senior Associate and Solicitor, Family Law, Russell Jones & Walker, Solicitors:

In 1977, the (then) House of Lords upheld a decision dispensing with parental consent to an adoption. The case, Re D (Parent’s Consent) [1977] 1 All ER 145, is a creature of its time, epitomising the prevailing overt judicial homophobia and the arbitrary treatment of families different to the paradigm. The trial judge dispensed with a father's consent to an adoption on account of his being a 'practising' homosexual who would not prevent his son from 'coming into contact with other men of his own proclivities'. As such, 'The father [had] nothing to offer his son at any time in the future'. The House of Lords declined to disturb that conclusion.

Skip forward 35 years. Surely the days of such an irrational judicial approach to alternative families is consigned to history? In this article, we look at that question, arriving at an ambivalent response: we've come a long way but the journey is not over. We examine two recent cases to illustrate our conclusion. We look at lessons we believe remain to be learned by those concerned with the administration of justice, if we truly are to achieve a legal framework where decisions about families are informed by reference to their individual needs, rather than preconceptions about the sexuality of those within them.

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