Family Law

The headlines (even in the ‘quality' press) say it all -‘Lesbian mother and gay father in court...' - and it's over the children. The story revolves around a gay man and a lesbian woman and her partner in what is thought to be an unprecedented court battle (the battle isn't new, but the court appearance might be) over access to the children. So far, it sounds fairly ‘run-of-the-mill' private law stuff except for the references to the sexuality of the adults involved. Not sure why we need that, but perhaps it will become clearer...

The lesbian mother and her partner took their case to the Court of Appeal when the sperm donor via artificial insemination won a shared residence earlier this year in the High Court. The sperm donor had put a nifty advert in Gay Times offering sperm for parenthood - note to man involved: no, actually, real parenthood just doesn't work like that. The winning (I do dislike that word in relation to private family law cases in particular) of the case allowed the father to see his children almost half the time. Seems his advert was right - he had everything but the kids. Really?

Professing to want little ‘involvement' but with a ‘lot to offer', all was fine until the ‘lot to offer' got too much and the lesbian couple decided to fight in court the ‘unofficial' sperm donor father (had this been ‘official' then we would not be reading about it, would we?) who had what the newspapers use inverted commas for - parental responsibility for the children from the off, so to speak. A residence order is sought by the lesbian couple who want to avoid what they believe to be the sperm donor father usurping the lesbian mother's partner's position as a parent of the two children. Got that?

The lesbian couple have cared for the children since birth, although there is no aspersion cast upon the contact with the sperm donor father and the children thus far. Contact arrangements are reportedly ‘complex', though, and the mother of the children feels that her partner is ‘marginalised' by the sperm donor father and the situation needs a satisfactory resolution involving regularisation of domestic arrangements. He is reported to have played a full part qua father - taking children to doctor and paying school fees being specifically mentioned.

The father's representative is keen that this is seen as a real reason to support the desire of the father to share residence of the children, undoubtedly supported by campaigners wanting shared residence to be the norm. The couple with care of the children see themselves as the ‘real' parents of the children since birth. They want the children to have a permanent home with the primary carers which they think will only be theirs if they have the residence order without the father of the children as they perceive without it the father can ‘interfere' in the care on a day-to-day basis.

Perhaps the family law review will support the position of shared care as the norm in due course, otherwise there are confusions creeping in over shared residence, parental responsibility and day-to-day care of children in these complex situations which are not simply due to slight misrepresentations in the media.

Lord Neuberger has reserved the judges' decision until a later date. With respect, so would I. Needs a bit of thought, does this one, especially when the implications may be widespread. It is sad to see the ‘everything but the child' attitude being played out for all to see.

So - a hint of ‘commoditization' of children in this situation; we want, we get. Welcome to parenthood. No, really, when this happens you are welcome to it.

Penny sets the questions for Family Law journalCPD, a new way to gain CPD points by answering multiple choice questions based on the content of the journal.

She is an Honorary Research Fellow at Liverpool University Centre for the Study of the Child, the Family and the Law. Click here to follow Penny Booth on Twitter.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.