Three's A Crowd?

Few will have missed the recent coverage in the press in which it was claimed that the Court of Appeal in A v B [2012] 'allowed' a two-year old boy, born to a lesbian couple and their gay male friend, to have three parents instead of two. It follows several recent high-profile cases in which the courts have grappled with disputes relating to 'alternative families'. But beyond the headlines, the judgment of Thorpe LJ, Black LJ and Sir John Chadwick reaffirms key principles regarding co-parenting arrangements and raises important issues for the future.

Background

The boy was conceived following an agreement at a dinner party between the mothers and the father. Interestingly, the biological mother was from a religious background, and so she and the father married two years before the birth to alleviate any difficulties she might face while pregnant. While the exact nature of their intended roles was subsequently disputed, it was agreed that the boy would live with the mothers.

Difficulties in the relationship between the father and mothers soon appeared during the pregnancy and the father applied for a defined contact order shortly following the child's birth. The mothers then applied for a joint residence order and a specific issue order in relation to the father's parental responsibility.

First instance

The case came before HHJ Jenkins who made a joint residence order in the mothers' favour, and an order for contact with the father for six hours once a fortnight, remarking that the father's role would be secondary, with no staying contact, for the foreseeable future. He held that the case was not in any way analogous to a divorce model, and therefore consideration of an equivalent contact regime was inappropriate. He said that:

Any benefit [from developing the relationship] that accrues is likely to be outweighed by what I consider is likely to be confusion and disruption and the potential disruption of the relationship between the mothers and the child, and it is that relationship which provides the nurture, stability and security.

Father's position

The father appealed and, as Thorpe LJ noted, the appeal was largely directed at the judgment, as it would have been hard for the father to show a deficit in the contact order. However, while the HHJ Jenkins' comments would not bind a judge in the future, the effect was equivalent to a prohibition of staying contact without the court's permission for three to four years. The father argued that the judge had effectively frozen what would otherwise be the normal development of the relationship with the child.

Mothers' position

The position of the mothers was that the judge had been concerned with contact only in the immediate future and so the Court of Appeal should be reluctant to interfere with that. Pointing to a string of recent decisions, they argued that it was inappropriate for the father to seek to apply nuclear family arrangements to a gay...