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),

Coffee, Hot Chocolate and Mocha- Modern Child Protection Planning

Traditionally, there was always the case that foster carers were just that, there to care. The parents were very much in the picture. Their polar opposites were the adoptive carers, were seen as future parents not carers, to the exclusion of the parents.

I have been told that a traditional child protection analogy was based upon coffee and hot chocolate. A different need at different times of the day: different children, different future parenting needs. There is now a hybrid version of these new types of parenting need-namely special guardianship orders: a mixture of the two, with elements of both traditional orders and carrying the analogy through-mocha parenting.

Special Guardianship, under section 14A of the Children Act 1989 takes the strengths from the adoption order: security of placement and simplicity and stability of the residence order.

One of the strengths are that although the parents do not loose parental responsibility- the special guardian holds the ace in the pack and exclude the parents from certain decisions. The special guardian's can also change the child's name, as in adoption. From the parents' point of view, however, this is not a forgone conclusion and can be denied by the judge. L (A Child) (2007) 13th March 2007. The security is often for the child, knowing the true nature of the parentage but knowing the carers are there for the long term. More importantly, these orders are supported by regulations-which the local authority is under a statutory duty to carry out. Namely to assess and support the placement with appropriate funding and services. The report is a full survey of the child, its needs and those of the carers to furfil those needs.

There have been a plethora of cases in the appellate court deciding which is the best order for children involved, but what has been interesting is the overwhelming judicial support for these orders. Their popularity amongst the judges, child welfare professionals and indeed families suggests the need was not being serviced before the Children and Adoption Act amendments.

Along with new form of ordering, there is a new form of litigant, often these new orders and these new litigants are side by side. Many of the cases referred to below involve these litigants applying for or being given Special Guardianship orders.

It has been noted that now, a case could involve any satellite relative orbiting the case: an aunt, a grandmother, a cousin, even a neighbour or even a friend of the child's parents have been known. Again, this modern litigant is a blend of the traditional parent and the new social and community relations in parenting today. Importantly, the judges even in county courts in market towns, no longer see these litigants as exceptional now rather normal.

There has already been an interesting rise in the grandmother applicant in family law and there is now a rise in these grandmother applying for special guardianship orders, next generation parenting. Along with this unexpected trend is the expected revolution, allowing the current foster carers to apply for orders which they were previously discouraged from applying for. The law now positively encourages these new types of litigant to come to court and obtain orders, by removing requirements for leave (permission to apply for an order) and time restrictions now down to a year.

The orders that can be applied for are for residence, special guardianship and even adoption orders. This has elevated each and every foster carer to a potential adopter or special guardian. With the case of both orders, the foster carer need only have the child for a year under section 42 of the Children and Adoption Act 2002 to apply for Adoption Order and section 10(5) for a Special Guardianship Order.

This has three clear obvious problems.

Firstly, for local authority foster finding departments. The search for the right placement as opposed to the stop gap placement has now become heightened. Moreover, the idea of cooperation between the foster carer and the parent will have to be managed entirely differently, if any placement could become an adoptive one within the year. Additionally, if the placement was less than ideal due to the nature, need and speed of placement-that foster carer does not have to have local authority support for an application.

Secondly, for that receiving foster parent who now, after a year, no longer needing leave, can apply in the currency of actual proceedings to have the child placed, leaving local authority care plans in tatters.

Thirdly, for the parents, the foster carer who was just an option to care could be a future option to parent before the final hearing. There will be no delay or extra time to convince a court that they are safe to parent in the future. I would advise all barristers and solicitors representing parents to ask for a declaration under section 42 of the 2002 Act and section 10 (5) of the 1989 Act- if the child has been in the placement for over a year. Namely, insure that the social worker has planned for the intervention (if any) of the current carers.

It therefore appears that child welfare professionals and parents have to also stop thinking about traditional roles, litigants, carers and orders and think and expect a modern blend and mix to fit the child's needs more often.

"

The cases are available:

Re EN 23rd March, 2007

Re R 20th December, 2006

Re L 13th March, 2007

Re S 6th February, 2007

Re S (no2 )14th February, 2007

Re AJ 6th February, 2007

Re MJ 6th February, 2007

Enquires made by email, will, given time be forwarded to anyone who requests them.

RE S (A CHILD) (2007)
[2007] EWCA Civ 54
CA (Thorpe LJ Tuckey LJ Wall LJ)6/2/2007
FAMILY LAW - LOCAL GOVERNMENT
ADOPTION : CHILDREN : SPECIAL GUARDIANS : SPECIAL GUARDIANSHIP ORDERS : PROPER APPROACH TO MAKING SPECIAL GUARDIANSHIP ORDER : s.91(4) CHILDREN ACT 1989 : s.1(3) CHILDREN ACT 1989 : s.6 ADOPTION ACT 1976 : s.14A(11) CHILDREN ACT 1989 : s.14A(9) CHILDREN ACT 1989 : s.14A(8) CHILDREN ACT 1989 : s.8 CHILDREN ACT 1989
In the circumstances the judge had been entitled to conclude that a child's welfare was better served by a special guardianship order than by an adoption order. The Court of Appeal considered the overarching consideration to be applied in making one or other of those two orders and gave guidance to instant courts on the proper approach in such cases.
The appellant (D) appealed against the decision to appoint her as a special guardian for a six-year-old girl (S) rather than make the adoption order that she had sought. S's mother and father were not married. There were concerns about domestic violence and non-accidental injury to S. Both parents became involved in drugs' use resulting in inappropriate care of S. When S was three, she had been placed with D as her foster mother on a voluntary basis. Care proceedings were commenced and assessments concluded that neither parent was suitable to look after her. After being placed unsuccessfully with a cousin of the father, S eventually returned to D. Later the local authority's care plan changed to adoption outside the family a closed adoption. D therefore put herself forward to adopt S. The father and mother then applied to discharge the care order and for contact. The judge, decided that S should live with D but that adoption order soughtwas not the best or only way of securing S's welfare through her childhood. The judge instead appointed D as a special guardian of S and made an order under the Children Act 1989 s. 91 (4) that leave was required for any application under the Act. Both the mother and the father were to have contact. D submitted that the judge had (1) ignored the guardian's evidence in favour of adoption; (2) failed to address the criteria for consideration of S's welfare as set out in the welfare checklist and had therefore come to the wrong view about special guardianship being the most appropriate order; (3) failed to consider appropriately the issue of whether the mother's consent to adoption had been unreasonably withheld.

HELD: (1) It was not a fair criticism of the judge that she had ignored the guardian's evidence. The guardian had not made a clear recommendation at all. It was therefore sufficient if, as she had done, the judge explained her reasons for making the order she did in terms that made her reasoning clear. (2) The judge had not in terms addressed the welfare checklist contained in section 1 of the 1989 Act. It would have been better had the learned judge had done so; however, it was clear that the judge had grasped and addressed the important issues in the case, and in all the circumstances, the failure to do so by reference to the statutory checklists did not vitiate that judgment. As a matter of discipline, and as an aid to ensuring that the court had fully addressed all the relevant issues, a reference to the checklist and an analysis of the issues by reference to it were desirable. (3) The submission that the judge had failed to address the question of the unreasonable withholding of agreement was unsustainable for the simple reason that the test under the Adoption Act 1976 s.6 was twofold, and the question of dispensation with agreement only arose if the court was satisfied that adoption would safeguard and promote the child's welfare throughout her childhood. In the instant case, the judge was not so satisfied and D fell at that first hurdle. The judge had been entitled to take that approach and to conclude that, on balance, S's welfare was better served by a special guardianship order. The judge had thus been entitled not to address the question of parental consent. (4) Under section 14 A11 of the 1989 Act the court did not have the power to make a special guardianship order unless it had received a report dealing with the matters referred to in s.14A(8). Accordingly the judge should have exercised her power under section 14 (9) to ask the local authority to conduct an investigation and prepare a report. Subject to the parties' submissions, the court proposed to invite the local authority to produce a report under section 14 8 and the judge to reconsider her order having read that report. (5) The court gave guidance on (a) special guardianship orders within pre-existing family relationships; (b) the need, under a special guardianship order, for leave for a parent to apply for an order under section of the 1989 Act; (c) dispensing with parental consent to adoption; (d) in what circumstances, if any, the court should impose a special guardianship order on unwilling parties. Appeal dismissed.

A Revolutionary Judgment to Protect An Adult Witness of Child Abuse

H v (1) L (2) R (2006)
[2006] EWHC 3099 (Fam)

LTL 15/12/2006 : Times, February 19, 2007
Fam Div (Roderick Wood J)7/12/2006

CIVIL PROCEDURE - FAMILY LAW - HUMAN RIGHTS
ADVOCATE TO THE COURT : ATTORNEY GENERAL : CHILD SEXUAL ABUSE : CROSS-EXAMINATION : FAMILY DIVISION : LITIGANTS IN PERSON : RIGHT TO FAIR TRIAL : FATHER SEEKING PARENTAL RESPONSIBILITY AND CONTACT : ADULT STEPDAUGHTER ALLEGING PAST SEXUAL ABUSE : ADVOCATE TO THE COURT TO CONDUCT CROSS-EXAMINATION : YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 : Art.6 EUROPEAN CONVENTION ON HUMAN RIGHTS

As an exceptional measure only, the Attorney General instructed an advocate to cross-examine a vulnerable witness who alleged past sexual abuse by a litigant in person step-father who, in the instant application, sought parental responsibility and contact with his other daughter. The court, however, emphasised the urgent need for a new statutory provision in private law proceedings where a serious allegation of sexual abuse had been raised and permitting the court to provide such an advocate in the interests of justice, fairness and human rights.

In proceedings where a litigant in person father (H) applied for parental responsibility and contact with his daughter (R), it fell to be determined who should cross-examine a vulnerable adult witness, H's stepdaughter (B). She had alleged that H had sexually abused her when she was a herself a child. R and B were half-sisters. Although adult, 20 years at time of trial, B was a borderline anorexic and a real suicide risk. In the context of H's application, the court held a fact-finding hearing to determine the truthfulness of B's allegations.

Counsel:For the applicant: In person
For the first respondent:Sophia Cannon
For the second respondent: John Church
Advocate to the court: Deiniol Cellan-Jones

Advocate to the court: Treasury Solicitor
For the first respondent: Howarth Scott Solicitors (Bexleyheath)
For the second respondent: Ewings & Co (Penge)

HELD:
(1) As a result of the judge's urgent request and invitation, in the instant case, the Attorney General exceptionally agreed to provide an advocate to the court to cross-examine B on behalf of H. It had to be emphasised, however, that the Attorney General should not be a regular "port of call" for the provision of such assistance even where, as here, where all other available options had been considered and eliminated. These options included iniviting pro bono organisations, including the Family Law Bar Association, the Free Representation Unit, and statuory bodies including CAFCASS Legal amongst others.

(2) (Obiter) In cases such as the instant one, evidence from child witnesses could be taken by interview rather than in court, but it was not the practice to protect adults from being cross-examined, Re D (2002) 1 FLR 723 considered. In criminal cases, the statutory framework set out in the Youth Justice Criminal Evidence Act 1999 protected witnesses from cross-examination by accused litigants in person, but in order to protect the accused's right to a fair trial under the European Convention on Human Rights Art.6, that included the provision of court-appointed advocates to conduct cross-examination in the interests of the accused. Therefore the judge surmised that there was an urgent need for a new statutory provision analogous to that provided in the 1999 Act to be introduced in private law proceedings. Judgment accordingly.

" This is a case of major importance, brought home to me by the number of requests for the judgment from litigants in person (the alleged perpetrators) and solicitors of victims. In requests from London to Manchester, it became clear that the interests of justice were not being served. Some cases have collapsed when the vulnerable adult could not face to relive the alleged abuse or the abuser leading to a fear on behalf of child protection professionals of the Huntley effect. This is where an abuser who has been detected or bought to justice, when upon further inquiry, is revealed to have a catalogue of victims, lower grade sexual offences and misconduct escalating to serious sexual assault and murder.

Of note, the judge could not see why there was a distinction between criminal cases and civil family cases especially, in this instant case where another child's welfare is at stake"