Civil Partnerships, Same-Sex Relationships and Children

This is a hypothetical case:

“Hi, Sophia!

I had a letter from a lady whose lesbian partner is about to have sperm
donated to conceive a child (through a clinic or from the Internet) they want to then move to Belgium or France where she her mother is or any other French speaking country. The writer wanted to know whether there are any legalities in respect of child now or after it's born? Will the partner have rights? What if the family stay in the UK?

Do you know anything about this?”

If I had been instructed on the basis of the above conversation, I would have advised all solicitors to consider the recent case law before the House of Lords. The case is Re G (Children) (Residence: Same Sex Partner) 2 FLR 629 : (2006) Fam Law 932 : Times, July 27, 2006.

I am of the view that the decision is extremely potent and perhaps it will take a cultural shift to change the view of the Lords. It has been viewed by some commentators as a step backwards-see E. Woodcraft Family Law January 2007.

I would have advised that the natural mother takes precedent in English law for issues of residence if there was to be dispute. This will be further complicated by the parties living out of the jurisdiction.

Moreover, as there is no identifiable father, if the anonymous donation is the source, the position of our client partner is not simultaneous to that of a father as there is no genetic connection. I shall therefore consider the possible implications of the decision for the "weaker parent" in other non-traditional families. The status of the biological mother of children conceived during a same-sex relationship was a significant factor to take into account in determining the primary carer of the children.

I quote from the case cited above:

“Of course, in the great majority of cases, the natural mother combines all
three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique”

The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.

The issues for consideration for those who instruct me are however slightly different. I would have needed to see the client in conference to obtain answers to the following questions.

1. Is there a civil partnership between the two parties?
2. If there is, where was it registered in the UK or abroad?

Is one partner from the UK and the other elsewhere? If so? Where?

Are the parties residing in or from Belgium or France?

Is the child to be born in the UK and be a British citizen?

Is the sperm donation “from a regulated source”?

In short the decision, if there is a civil partnership, although income related benefits, tax credits and child support; there is the ability to apply for parental responsibility for your civil partner’s child under section 72 of the Children Act 1989. With parental responsibility, if the child was British citizen and born here, the non genetic parent could oppose the removal of the child from the jurisdiction. This however, is an assumption.

What is the situation in France? In France, there is recognition of same-sex relationships. PACS, pacte civil de solidarité is a form of registered French statute for both same-sex and unmarried opposite-sex couples to have a civil union. Couples who contract into a PACS contract are afforded most of the legal protections and responsibilities of marriage. The right to joint adoption and artificial insemination are also denied to PACS partners, even though there are proposal to extent PACS rights and make them more similar to marriage. Equally, I have to assume that if there is a PACS contract, what is its significance in the UK?

I would have advised that same-sex couples who form certain "overseas relationships", certain legal relationships registered under the law of another country or region, will automatically be treated as having formed a civil partnership and will not need to register in the UK as well, the requirements must satisfy the Civil Partnership Act 2004, schedule 20 or the general conditions in section 214 of the Act.

I have enclosed a list of French speaking countries to assist those who instruct me as it is clear that the decision to move is still in flux.

If there is not a civil partnership, I would have advised those who instruct me to state that there will be no automatic right to contact (“visiting rights”) residence (“living rights”) or parental responsibility (“rights on upbringing”) when the child is born. Equally, if the child is not a British citizen thorough the birth mother or the father, if identifiable, then the client has even less rights.

The list of specified relationships in Schedule 20 currently contains:

Andorra - unio estable de parella (stable union of pairs)
Belgium cohabitation légale, wettelijke samenwoning, gesetzliches zusammenwohnen (statutory cohabitation)
Canada: Nova Scotia domestic partnership
Canada: Quebec - union civile, civil union
France pacte civile de solidarité (civil solidarity pact)
Germany Lebenspartnerschaft (life partnership)
Iceland staðfesta samvist (confirmed cohabitation)
Luxembourg - partenariat enregistré, eingetragene partnerschaft (registered partnership).


You are hypothetically advised.

RE G (CHILDREN) (2006)
[2006] UKHL 43 House of Lords 26/7/2006

FAMILY LAW CHILDRENS WELFARE : PARENTS :SHARED RESIDENCE ORDERS RELOCATION : SAME SEX PARTNERS : : RESIDENCE ORDERS : CHILDREN OF SAME SEX PARENTS : IMPORTANCE OF BIOLOGICAL PARENT : SOCIAL PARENTS : NATURAL PARENTS

The status of the biological mother of children conceived during a same-sex relationship was a prominent factor in determining the primary carer of the children. The courts below had allowed the unusual context of the case to distract them from basic principles that were of universal application relating to children's welfare.

The appellant mother (G) appealed against a decision ((2006) EWCA Civ 372), granting her respondent former partner (W), primary care of their two children. G and W had cohabited in a same-sex relationship, during which G conceived two children following anonymous donor insemination. Following their separation, the children stayed with G, but had regular contact with W and were content with both parents. G, however, in breach of an order imposed by the court, and without W's knowledge, relocated with the children from the Midlands to Cornwall. W issued applications to locate the children and made an application for a shared residence order and to be the primary carer. The judge granted the order and reversed the times allocated to each home. Her reasoning was that she had no confidence that if the children remained in Cornwall, G would promote the children's essential close relationship with W. The Court of Appeal upheld that decision. G submitted that the courts below were wrong to attach no significance to the fact that G was the natural mother of the children. Moreover, G argued that the High Court judge had been so distracted by her disapproval of G's behaviour, that she failed to give full consideration to the evidence relating to the children's welfare. G contended that the reversal in the parties' positions in response to G's removal of the children to Cornwall did not refer to the important fact that G was both their biological and their psychological parent and there was no good reason to change the children's primary home.

HELD: (1) The courts below had allowed the unusual nature of the dispute to deflect them from principles that were of universal application in UK law. The key principle, reinforced by statute and case law, in relation to any parental dispute was that the welfare of the children was paramount. Moreover, that principle was equipped to encompass the wishes of the parents, J v C (1970) AC 668 followed. However, the fact of parentage was still important. G's status as the natural mother of the children was a prominent factor to take into account, yet it did not feature in the Court of Appeal's judgment. (2) The reports showed that the children were happy and doing very well in G's home and that should not have been changed without good reason. Although G had deliberately wilfully disobeyed the court's order, since she had been located by court order, contact arrangements between the children and W had been reestablished and G continued to follow the order. Had the situation been the traditional and statistically usual case of a similar dispute between mother and father, it was difficult to believe that the court would have contemplated changing the children's primary residence while contact was continuing in accordance with the court's order. Re (1991) 2 FLR 109 and Re W (Residence Order) Times April 1993 K (A Minor) (Ward: Care and Control), Re (1990) 1 WLR 431; H (A Minor) (Custody: Interim Care and Control),