(House of Lords; Lord Nicholls of Birkenhead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond; 26 July 2006)
Following the separation of a lesbian couple, one of whom had conceived children by artificial insemination during the relationship, the biological mother was identified as the primary carer. Eventually, the court made a shared residence order to enable the mother's former lesbian partner, the non-biological parent, to achieve parental responsibility, together with an order prohibiting the mother from moving any significant distance from the former partner. The mother deliberately flouted that order, secretly setting up home in Cornwall, arranging schooling in advance and removing the children from their home city without any prior warning. The non-biological parent applied for orders under s 33 of the Family Law Act 1993 to discover the children's whereabouts, and, once that had been established, sought to be named as primary carer. The judge granted residence to the non-biological parent to prevent a future of litigation and emotional damage to the children. The Court of Appeal upheld that order.
The House of Lords allowed the appeal. The lower courts had allowed the unusual context to distract them from the principles of universal application. The fact of biological parentage was an important and significant factor in determining what would be best for the children. While it might well be in the best interests of the children to change their living arrangements if one of their parents was frustrating their relationship with the other parent who was able to offer them a good and loving home, this was unlikely to be in their best interests while that relationship was in fact being maintained in accordance with the court's order.