FAMILY LAW– Re G(Children Residence Order)The 21st-century represents perhaps, a greatest challenge to family lawyers in relation to the evolution of same-sex relationship, anonymous donor insemination and perhaps, what constitutes a parent(a father or mother). In this essay, Maame Ankamaah-Fordjour, considers the case of Re G (Children) (Residence: Same Sex Partner)  UKHL 43, where Baroness Hale, made the following two statements: “While CW is their psychological parent, CG is both their biological and their psychological parent. In the overall welfare judgment, that must count for something in the vast majority of cases.” (para 38) “First, the fact that CG is the natural mother of these children in every sense of that term, while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.” (para 44)
BRIEFS & MEMOS (PART ONE)
FAMILY LAW- Legally, when ‘in-tact ‘families break up and dispute about where their children’s main home should be, they can bring the case before the court to reach a dispute resolution between the parties. This normally results in a residence order being granted to one of the parties to the proceedings which usually states with whom the child should live. In Re G, a similar issue arose between same sex couples. Here, there was a dispute between two women (CW and CG) who had been in a lesbian relationship for 8 years. During the relationship CG had given birth to two daughters, conceived by way of anonymous donor insemination and parented jointly by the two women. Following the breakdown of the relationship, CG had sought to marginalise CW from the children’s life as a result of which a long and bitter struggle in the family courts ensued and an order was made transferring the children’s primary home from CG to CW. This order was appealed first to the Court of Appeal, where the order was upheld, and then to the House of Lords, where the appeal was successful- the children’s primary residence being transferred back to the birth mother.
This paper will critically analyse and assess the law in two parts- on genetic parentage in relation to Baroness Hale’s statement on the significance of ‘genetic link’ and whether presumption on this area of law exists. Case Law, academic debates, examples from different jurisdictions and surveys will be used to address the issue of whether ‘genetic link’ is of any importance in disputed residence cases in the changing social and legal climate we living in.
COMMENTARY & ANALYSIS
One of the important statements made in High Court in the Re G case is that of Hallet LJ, she agreed with Bracewell J, but with a degree of hesitation. She added that [at para 24];
‘I am very concerned at the prospect of removing these children from the primary care of their only identifiable biological parent who has been their primary carer for most of their young lives and in whose care they appear to be very happy and thriving. She is both a biological parent and a ‘’psychological’’ parent. Mindful as I am of the changing social and legal climate, on the facts of this case, I would attach greater significance perhaps than some to biological link between the appellant and her children.’
Clearly this controversial concept by Hallet LJ, is similar to the one adopted by Baroness Hale in her House of Lords Judgment in Re G[at para 38] which would be the focus of this essay. It could be seen on the above mentioned facts that, even the judiciary in the case of Re G from the first instance to the High Court were divided on the view of ‘cogent reasons for a court to prefer the claims of a person who is not the natural parent over those of one who was the natural parent’. Thus the issue on genetic parentage is very complex and controversial theme not only before the Judiciary but in the academic world.
In residence disputes cases it has been submitted that the courts’ general approach in deciding an application for a ‘contact order’ can be found in section 8 of the Children Act 1989. Additionally, it has been argued that there is no such ‘right of contact’, nor is there a rebuttable presumption in favour of ordering contact, although, the courts have talked in terms of a presumption or assumption that contact is beneficial.
Whether there is no rebuttable presumption in favour of ordering contact, it is important to spell out that in deciding any dispute involving children, the child’s welfare should be the paramount consideration and any issue involving’ parental right’-if there is any such right, should not override the best interest of the child as guaranteed under s. 1(1) Children Act 1989 (CA 1989), i.e. the welfare checklist.
Having set out the facts of Re G above, the next paragraphs will discuss the law before Re G, and assess how much weight the court has given to the ‘genetic link’ of the parent-child relationship in line with the different approaches taken by the judiciary. Some academics argue that there are fundamentally, two different approaches (i) ‘no presumption approach’ and (ii) natural parent presumption which the House of Lords in Re G is said to have failed in clarifying it any further. This paper would submit that, there is in fact a third approach (iii) ‘all things being equal approach’ adopted by the courts in previous years.
Whether this approach is in fact in existence would be examined in this piece. We would then go on to discuss the statement by Baroness Hale on Genetic Parentage in detail by illustrating the different ways of becoming a parent in the ‘scientific’ world we living in. It is important to note the this piece would address the definition given to parentage whilst discussing the different route of becoming a parent since this ‘definition’ poses some controversy.
Case Law Pre Re G- Different Approaches by the Court
The ‘no presumption approach’ was developed in 1970 by the House of Lords’ decision in J and Another v C and Others. It was held that all the evidence relevant to where a child should live should be weighed in the balance with no presumption favouring the birth parents. The second approach, was developed by the Court of Appeal in Re K (A Minor) (Custody) in 1990, there it was decided that, the child has a prima facie right to an upbringing by his birth parents: i.e. the natural parent presumption
It has been submitted by academics that over the past 20 years, the Court of Appeal has embraced the notion of the natural parent presumption even though it is not stated in Children Act 1989. Everett and Yeatman went on to argued that, ‘the natural parent presumption is consequently, without foundation and is in reality parental rights dressed up as welfare, hence the focus on the genetic relationship serves only to create a power imbalance and divert attention away from the true interest of the child.’
This statement gives room for comment. Whilst researching on the case of Re G, the question which popped up was that did the parents in Re G really think about how the children would be affected by the bitter residence dispute between them which went on for months- couldn’t one argue that, that was an emotional harm on its own? Probably, due to the age of the children (7 and 5 at the time) they would arguably, presume that they did not understand the nature of the dispute. Nevertheless the argument about ‘parental rights dressed up as welfare’ is an interesting and debatable one.
There is a need to contrast the no-presumption and natural parent approach in order to address the case of Re G. In determining the welfare of the child in a residence dispute between genetic and non-genetic parents the House of Lords decision in J v C is of importance and should be taken as the starting point.
In this case a 10-year-old Spanish boy had lived with foster parents in England for about 18 months of the early part of his life. The father appeared and wanted to take his son back. It was held that, the welfare test in the Guardianship of Infants Act 1925 applied to non-parents as well as parents hence, there was no presumption in law in favour of genetic parents in a case of contested residence. J v C is an old case, which was decided 20 years before the CA 1989 came into force. It has however, impacted the enactment of the current law on residence disputes.
The decision in J v C gave rise to controversy- critics argued that the court did not place much weight on the significance of the ‘special relationship and ties’ between children and their parents. As a result of this criticism the Judiciary, interpreted the law by giving more weight and significance to genetic ties between the ‘parent (birth) and child relationship’.
This shift of judicial activism was evident in the case of Re KD (A Minor) (Ward: Termination of Access), this case is said to support the view that it is in a child’s best interest to be brought up by his/her birth parents. This shift would clearly illustrate a shift from a ‘no presumption’ to a ‘natural parents presumption’, favouring the genetic parents. In relation to this, Lord Templeman stated that, the best person to bring up a child is the natural parent regardless of the parent’s status and background in life, so long as they do not harm the child’s moral and physical health.
Judiciary departing from the ‘no presumption’ in J v C, took a further turn in the Court of Appeal case in Re K in 1990. Here Lord Templeman’s statement mentioned in Re KD was interpreted to mean that the court should refuse a claim of the birth parents in family proceedings if it could be proved that the child’s welfare positively, demanded the displacement of the parental right, as stated by Fox LJ. It could be argued that this statement made by LJ Fox in the 1990s promoted not only the ‘natural parent presumption’ but shockingly, a ‘parental right’ when deciding where a child’s primary home should be.
The confusion on the concept established in J v C ,that there should be ‘no presumption’ in favour of natural parents when deciding residence dispute post-separation was apparent in case law even before and after the Children Act 1989 was enacted.
This led to Lord Donaldson in Re H(A Minor) (Custody: Interim Care and Control) attempting to clarify the law by stating:
‘All that Re K is saying, as I understand it, is that of course there is a strong supposition that, all other things being equal, it is in the interest of the child that it shall remain with its natural parents. That has to give way to particular needs in particular situations.’
Could this statement by Lord Donaldson in fact suggest the establishment of a third approach adopted by the court pre-CA 1989? In other words, the ‘all other things being equal’ approach is what this essay suggests to be a possible third approach adopted by the courts. According to Baroness Hale, this was the last word before the Children Act 1989 came into force.
The confusion concerning the interpretation of section of the Guardianship of Minors Act 1925 which was the main focus by the judiciary in J v C, was reviewed in 1980. The paramountcy of a child’s welfare in residence dispute cases was scrutinised by the Law Commission and led to the enactment of the current law(CA 1989). In particular section 1 of CA 1989 guarantees the welfare of the child to be the court’s paramount consideration. The inconsistency of the law post- J v C was addressed by the Law Commission in particular the issues involving whether there should be any presumption in favour of ‘natural parents’ when disputing over residence with non-biological parents. The Law Commission stated that, the law should remain unchanged for three reasons.
Firstly, they accepted the fact that, a child may have a closer relationship with someone other than the ‘natural’ parent, observing that, ‘the emotional and psychological bonds which develops between a child and those who are bringing him up are just as natural as his genetic ties.’ Secondly, it considered the welfare test in itself as able to encompass any special
contribution which natural parents make to the emotional needs of their child. Finally, and most importantly, they concluded that the priority given to the welfare of the child needed to be strengthened rather than undermined. For these reasons section 1 makes no mention of a presumption in favour of the ‘natural parent’.
There is some truth in saying that, a child may have a much closer bond to a ‘non-biological adult’ than the ‘natural parent’. This fact can be clearly seen between the bond some children have with for example their grandparents or foster-parents. In England and Wales grandparents can apply for a contact order under section 8 of the Children Act 1989, but will normally first need to obtain the leave of the court under section 10 in order to bring a proceeding. In granting a leave, the court makes its decision on the checklist provided under section 10(9) in line with the welfare checklist in section 1(3) but here the child’s welfare is not the paramount consideration.
Despite the clarification from the Law commission on section 1 of CA 1989, there still seem to be difficulties in the judiciary in accepting the fact that there is no such presumption favouring ‘natural parents’ post the CA 1989. In Re W (A Minor) (Residence Order), Balcombe LJ supported the ‘all things being equal approach’ introduced by Lord Donaldson in Re H, stating that-
he hoped that ‘it may be possible that this divergence of views, if such it really is, can finally be stilled’.
Above all, if we critically analyse the previous judicial activism pre and post the Children Act 1989 came into force, we could clearly identify that the court did place much weight on the ‘genetic-link’ between parent-child relationship. Additionally there seem to be some inconsistency as to whether section 1 of the Children Act actually gave rise to a presumption in favour of ‘natural parents’. Thus lead to the assumption that there was such a right as ‘parental rights’ when deciding where a child to reside to the all ‘things being equal’ approach. It has been submitted by academics that in fact during the 1909s the Court of Appeal appeared to ‘pay lip service’ to Lord Donaldson’s approach, whilst in reality they were endorsing the Re K prima facie approach.
….to be continued
About the Author- Maame Ankamaah-Fordjour is a Trainee Solicitor & JusticeGhana Youth-Editor.
Available On Request