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Principle or pragmatism? Lesbian parenting, shared residence and parental responsibility after Re G (Residence: Same-Sex Partner) [2006] CFLQ 125

Date:20 SEP 2011

In Re G (Residence: Same-Sex Partner) the Court of Appeal was called upon to determine the level of involvement and status to which a lesbian co-parent was entitled following her separation from the biological mother of children they had raised together. The decision represents something of a landmark for same-sex parents. In his judgment, Thorpe LJ took a principled approach designed to assimilate the appellant's position, insofar as it was possible to do so, with that of a biological father in similar circumstances. In stark (and welcome) contrast to previous lesbian parenting cases, it is difficult not to notice that the word 'lesbian' does not feature once in the judgment. Whereas previously a mother's lesbianism has been 'a factor to be considered' in cases arising under Section 8 of the Children Act 1989, the exclusion of lesbianism as a relevant factor in Re G indicates that the courts are now prepared to countenance the reality of lesbians as parents as a matter of principle, not merely on an ad hoc basis, as has hitherto been the case. In that sense it could be argued that, with his Re G judgment, Thorpe LJ has ushered in a new era of acceptance for same-sex parents, one in which their status as parents is duly recognised and reflected in law. However, it is argued here that the judgment raises several issues that may practically limit the utility of Re G as a precedent in future, similar cases. Indirectly, these issues champion the need for a new legal understanding and definition of parenthood. Whilst the judgment heralds a new era in transcending the prejudice and presumptions that have tainted previous lesbian parenting judgments, it also highlights the need for further reform.

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