ENGLISH COURTS' TREATMENT OF THE CHILDREN OF SAME‐SEX COUPLES

• DOI: http://doi.org/10.1111/j.1744-1617.2010.01324.x
• Date: 01 July 2010
• Published date: 01 July 2010

ENGLISH COURTS’ TREATMENT OF THE CHILDREN OF

SAME-SEX COUPLES

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

SUMMARY

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.

ONCE UPON A TIME. . . .

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.

Adding:

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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