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Re G (Children) (Residence: Same-Sex Partner) [2006] 4 All ER 241: a heteronormative approach to lesbian parenthood

Clara Parry

Clara Parry

Clara read Law at Cambridge University and is now studying for the New York Bar Exam. She is particularly interested in family law and human rights.

In Re G (Children) (Residence: Same-Sex Partner), the House of Lords gave weight to the natural parent presumption when dealing with a residence dispute between lesbian parents. The welfare principle was applied in this case as having a biological factor and as though the situation of lesbian parents was akin to that of a heterosexual couple. The judgment was a heteronormative approach to what has been labeled a non-traditional or alternative family model situation, leaving the non-genetic parent at a legal disadvantage and unequal to the genetic parent.

Link to judgment: [2006] 4 All ER 241; [2006] EWCA Civ 372; [2006] UKHL 43
Reversing [2006] 1 FCR 681

Facts

G and W were in a lesbian relationship for seven years and had two children together after G was inseminated using sperm from an anonymous donor. The initial proceedings provided the children would live with G and have alternate weekends with W in Shropshire. G subsequently moved to Leicester to frustrate W’s contact with her children, leading W to appeal to be granted a shared residence order. The shared residence order automatically granted W with parental responsibility. In breach of a court order stating G had to stay in Leicester, she moved to Cornwall with her new partner and the children, without informing W or the children of the move beforehand.

W issued applications to locate the children and to be made primary carer of the children.

Issues and legal background

The welfare principle s.1(1) of the Children Act 1989 states that whenever the court considers a question relating to the upbringing of children, the paramount consideration should be the welfare of the children. In other words, the Court’s primary focus is on what is in the best interests of the children. S.1(3) of CA 1989 provides a list of factors that the judge ought to consider when deciding what is in the child’s welfare, although a judge may account for other factors.

It is important to note here that the Human Fertilisation and Embryology Act 2008 was not in place and thus the antiquated 1990 Act still applied. The HFEA 1990 and made no provisions for same-sex parents and therefore W was, legally speaking, insignificant to the children and had no rights vis-a-vis them.

Judgments

First instance

Bracewell J granted the order and reversed the times allocated at each home. She found that the risk of emotional harm from moving the children to W’s principal care was outweighed by the fact she had no faith that G would help promote their relationship with W.

G appealed on the ground that “cogent reasons must exist if a court is to prefer the claims of a person who is not a child’s natural parent to one who is” (CAFCASS officer’s recommendation in this case supported by precedent).

Court of Appeal

Thorpe LJ upheld the initial decision stating that “in the eyes of the child the natural parent will be the person who, by virtue of long-settled care, has become the child’s psychological parent” [para 43]. Furthermore, he indicated that there should be no difference between a case involving a woman who had received assisted reproduction treatment with a male partner from one who had a female partner [para 42].

G appealed again on the same grounds.

House of Lords

G’s final appeal was successful in the House of Lords. All judges agreed with Baroness Hale’s judgment that, although there is “no presumption in [G’s] favour” [para 44], the fact she is “the natural mother of these children in every sense of that term is undoubtedly an important and significant factor” [para 44]. A majority of the judges also stressed separately the fact that this dispute did not concern two biological parents and that Bracewell J and Thorpe LJ had failed to attach enough importance to this fact (Lord Nicholls at para 2 with whom Lord Rodger agreed, Lord Scott at 3).

Baroness Hale’s judgment focused on exploring the meaning of ‘natural parenthood’ while stressing the importance of biological parenthood [para 7]. She identified three distinct routes to ‘natural parenthood’: genetic, gestational, and social and psychological. Genetic parentage would bring a “special sense of love and commitment” from the parent which benefits the child, as well as the knowledge of its origins and heritage to develop a sense of self. Gestational parenthood “recognises a deeper truth: that the process of carrying a child and giving him birth […] brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.” Finally, social and psychological parenthood refers to “the relationship which develops through the child demanding and the parent providing for the child’s needs.” [para 33-35]

Baroness Hale went on to essentially construct a parental hierarchy, attaching importance to a parent who fits the genetic and social route to ‘natural parenthood’. She said:

While W is their psychological parent, G is both their biological and their psychological parent. In the overall welfare judgment, that must count for something in the vast majority of cases. Its significance must be considered and assessed. [para 38]

Baroness Hale endeavoured to explain the importance of genetic parenthood. She described the role played by the genetic parents as ‘unique’ and argued that a child benefits from knowing their genetic origins which is ‘an important component in finding an individual sense of self as one grows up’. [para 36]

On the point of contact being frustrated, Baroness Hale deems this not to have happened as “once [G] had been located and contact arrangements reinstated, she had abided by them” [para 43] and that changing living arrangements “is unlikely to be in [the children’s] best interests while [the relationship with the other parent] is in fact being maintained in accordance with the court’s order” [para 44].

Analysis

The House of Lords’ judgment places too much emphasis on the gestational nature of parenthood and, in doing so, failed to identify and recognise the unique circumstances of same-sex couples.

Lesbian parenthood can only be different from heterosexual parenthood

The first, most noticeable, point in this judgment is the lack of acknowledgment that lesbian parenthood and heterosexual parenthood are different and that they cannot be compared. Indeed, it is interesting to note that at no point in the judgment was it mentioned that the happenstance of this parenthood situation is different from a heterosexual experience of parenthood. Of course, only one parent would have a biological link should be one’s first reaction to this judgment. These partners had to choose who would carry the children and whose eggs would be used and it just happened to be G. Scientifically speaking, one of the two was always going to have a ‘natural parenthood advantage’ over the other. Given the nature of how a same-sex family is created and its dismissal of traditional parenting conceptions, the House of Lords should have considered the different family dynamics when discussing the children’s welfare.

In failing to recognise the fact that lesbian-led families are not the same as, nor similar to, heterosexual families and in an attempt to treat them equally [para 6], the House of Lords adopted a specific historical and cultural view of a ‘natural’ family. Throughout her speech, Baroness Hale focuses on the application of the law for unmarried fathers in the past and how, in such instances, the fact of parenthood has been approached. However, there is no mention made of the differences that are indivisibly founded in the lesbian-led family.

The ‘fact’ of parenthood

It is interesting to note the lack of emphasis placed on the gestational connection in heterosexual scenarios whereas in this case, and those following it, this factor acts as a sort of ‘bonus point’ when applied within lesbian-headed families.

The issue discussed by the House of Lords in this case was the relevance to welfare of the ‘fact’ of parenthood. In the ‘usual’ cases, that question does not arise. Indeed, both parties are legal parents with a defined social label and a given role within the hetero-nuclear family. This allows the fact of parenthood to be dismissed as a relevant factor to the welfare principle and enables the qualities each party brings as a parent to be properly analysed.

In G and W’s case, on the other hand, the combined ‘facts’ of G’s legal parenthood and her biologically (and gestational) based natural parenthood – her status – outweighed W’s socially and psychologically based natural parenthood – her actual parenting – in the assessment of welfare. According to the way the law allocates parental status, her parenting was enough to give W natural social parent status but could never be enough to give her legal parent status.

The heteronormative application of the welfare test

The above point enhances the heteronormative view of alternative family models. It implies that welfare is best achieved through biological fact and imposes a hierarchy of families. Diduck rightly concludes that ‘[a]s long as welfare is linked with this form of ‘real’ parenthood and viewed from the heteronormative perspective, there is little conceptual space for the lesbian co-mother to inhabit and limited legal space for her mothering work to be acknowledged.’ (p.471 in Child Family Law Quarterly 19: 458). In this case, it is obvious that the court analysed the child’s best interests by emphasising on gendered binary parenting, rather than on the welfare principle’s checklist as it should have.

The welfare principle’s flexibility ignored

The welfare principle’s checklist is a guideline and thus provides flexibility for judges to consider other factors, such as circumstantial ones. It could be argued that this is what they did here, they looked at the circumstances and included the biological factor within their application of the principle. However, for the reasons stated above, the judiciary seems to have opted for a one size fits all approach, rather than considering the special characteristics at play in such a case and taking the opportunity to address the applicability of the principle for same-sex parents.

This case was a chance for the House of Lords to develop the principle to its full extent by recognising alternative families and dissociating the law from the traditional conceptions of what makes a family.

Moving forward

It is clear from this article that the law concerning same-sex parents is complex and confusing. It is a disservice to lesbian co-parents to force them into a position where, by default, the non-gestational mother is at a disadvantage. Alternative families cannot and should not be forced to fit a framework built for something which does not represent them. Writing extra-judicially in 2014, Baroness Hale says of the case “we were applying normal principles in a novel context” (p.30 Journal of Social Welfare and Family Law, 36: 26). But a new era has fortunately dawned on same-sex parenting.

In a unanimous and single judgment delivered by Lord Kerr in Re B [2009] UKSC 5, their Lordships returned the child to the care of his grandmother and confirmed that the correct interpretation of Re G was that there should be no presumption in favour of a genetic parent when determining with whom the welfare of the child is best fulfilled.

The HFEA 1990 also now enables a partner to be registered as the ‘other parent’, although this label has also caused some controversy. In fact, in her article, Baroness Hale wishes “now that [she] had referred to them both as mothers, rather than to one as the mother and the other as the other parent” and that she “appeared to attach too much weight to the carrying mother’s role – almost as if the three types of parenthood could outweigh the one” about her judgment in Re G.

Unfortunately, the HFEA 1990 still does not accurately reflect the reality that is same-sex parenting and a general acceptance of families with two mothers or two fathers.

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