Date01 July 2010
Published date01 July 2010
Stephen Cobb
This article reviews the historical approach of the English Courts to the children who are raised in same-sex households; it
discusses the very recent reformation of attitude of the courts, and of the legislators, to such family arrangements, and it
examines the current attitude of the English Courts. The article considers how the courts have struggled historically to apply
ordinary welfare principles in the different context of homosexual parenting, and discusses the complex inter-play of family
relationships when children are born into same-sex families through donor insemination. The article discusses the ongoing
challenges for the courts in dealing with cases of this kind.fcre_1324482..504
Keywords: English Courts;same-sex parenting;disputes concerning children
The process of equalizing legal “rights” for homosexuals commenced about 40 years ago in the
English legislature (Sexual Offences Act of 1967). However, it is only in the last 15 years or so that
the English courts have seen a significant shift of judicial attitude towards the raising of children in
same-sex households, reflecting society’s acceptance of more diverse family norms. The pace of
change in the courts has accelerated in the last five years, with some key appellate decisions
acknowledging the importance of the same-sex family.
Lord Justice Dyson neatly summarized the development of the law in Singh v Entry Clearance
Officer, [2004]1in this way:
. . . there has been a sea-change in society’s attitudes towards same-sex unions. Within my professional
lifetime we have moved from treating such relationships as perversions to be stamped out by the more or
less enthusiastic enforcement of a repressive criminal law to a ready acknowledgement that they are
entitled not merely to respect but also, in principle, to equal protection under the law . ..
Domestic legislation in England and Wales has moved in tandem with these changing judicial
attitudes, with statute law now providing (for example) for the grant of parental responsibility for
children to a non-biological partner of a same-sex union (where they are joined in civil partnership),
and allowing for adoption of children by same-sex couples.
This paper reviews the historical approach of the English courts to the children raised in same-sex
households, to examine the current attitude of the English courts and to look at the ongoing challenges
for the courts.
Prior to the Guardianship of Infants Act of 1925, a father was the sole guardian of his legitimate
children and the mother was the only person with parental rights overher illegitimate child. It was only
in the wake of political debate surrounding equality of rights for women that the Guardianship of
Infants Act of 1925 was enacted. Section 1 of the Act required the court to have regard to the child’s
welfare as the “first and paramount” consideration. Thereafter, the legal claims of father and mother
were to be ignored and the child’s welfare was to prevail. This section created an important provision
of statute law which has become a cornerstone of current child law in England and Wales.
FAMILY COURT REVIEW,Vol. 48 No. 3, July 2010 482–504
© 2010 Association of Familyand Conciliation Cour ts
Since the Guardianship of Infants Act of 1925, any court which has been (or is) determining any
question with respect to the upbringing of a child has had a statutory duty to regard the welfare of the
child as its paramount consideration2.
What is “best” for children (the “welfare” concept) has alwaysbeen inter preted and applied by the
courts by reference to the societal norms and standards of the day.
In 1970, Lord Macdermott in J & anothervC&others [1970],3offered assistance in defining the
phrase as follows. “The first and paramount consideration,” he said, connoted “a process whereby,
when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other
circumstances are taken into account and weighed,the course to be followed will be that which is most
in the interests of the child’s welfare as that term has now been understood. That is the first
consideration because it is of first importance and the paramount consideration because it rules on or
determines the course to be followed.”
The statutory duty to regard the child’s welfare as paramount was later consolidated in Section 1
of the Guardianship of Minors Act of 1971, applying to “any proceedings in any court.” By that Act,
the court was expressly instructed to disregard whether from any other point of view the claim of the
father was superior to that of the mother or vice versa.4The 1925 Act had still not given equal rights
to both mothers and fathers; this did not come about until the Guardianship Act of 1973.
Currently, the welfare principle is enshrined in Section 1 of the ChildrenAct of 1989. It applies in
any proceedings where the court has jurisdiction to determine a question concerning a child’s
upbringing. In fact, this arises whether on an application for an order under the Children Act of 1989
itself, or under the Adoption and Children Act of 2002 (placement of children for adoption, and
adoption of children) or under the inherent jurisdiction of the High Court.
The judicial evaluation of “risks, choices, and other circumstances” (see JvCabove)are, of course,
bound to be different in 2009 than they were in 1970.The principle has, after all, withstood challenges
presented by continual social changes within and beyond the family and it is, or should be, sufficiently
versatile to encompass the range of “parental” relationships which the child enjoys.
Even now, its application presents challenges to family judges in the evolving “high-tech” worldof
reproduction. As Hedley J observed (para.6) in Re B5:
Traditionally the role of the judge hearing family law cases has been to decide them by reflecting and
applying the broadly agreed norms of society. That is no longer always possible for in the increasingly
complex routes by which family groups come into being or realign, it is often not possible to identify
norms which a judge could be confident would be widely shared. That has required the judge to adopt the
unfamiliar role of suggesting and then applying principles which should govern these new developments.
Of course the basic principle of the paramountcy of the welfare of the child remains the crucial determinant
but the basis upon which welfare is identified in an individual case is much less clear.
The evolving application of welfare in disputes relating to children waslyrically summarized in the
speech of Baroness Hale in Re J (Child Returned Abroad: Convention Rights) [2005]6(para.37) in
which she said:
Once upon a time it was assumed that all very young children should be cared for by their mothers, but that
older boys might well be better off with their fathers. Nowadays we know that some fathers are very well
able to provide everyday care for even their very young children and are quite prepared to prioritise their
children’s needs over the demands of their own careers.
Once upon a time it was assumed that mothers who had committed the matrimonial offence of adultery
were only fit to care for their children if the father agreed to this. Nowadayswe recognise that a mother’s
misconduct is no more relevant than a father’s: the question is alwaysthe impact it will have on the child’s
upbringing and well-being.

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