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Shared Residence Claim for Lesbians’ Twin Daughters Highlights Legal Complexities of Modern Families

Tuesday, 20 May 2014

The traditional family model is no longer the starting point for large numbers of family formations. The rapid evolution of the modern family has followed sweeping social changes that have occurred in a relatively short period of time.

The advent of civil partnerships and gay marriage; the growth of unmarried couples, same sex couples and single individuals wishing to have children; and major scientific advances mean there are a complex variety of different circumstances in which children may now be introduced. This provides parents that make such a choice and their children, wonderful opportunities for fulfilling lives but it can also create significant legal challenges.

The downside to these rapid developments is that the legal system can take time to absorb the myriad of issues that arise when things go wrong. A recent Court of Appeal decision has emphasised this difficulty.

Shared Residence Appeal by Egg Donor

In Re G (Children) [2014] the Court of Appeal ruled on whether a lower court was right to refuse to grant a shared residence order to an egg donor for twin girls born to her former female partner.

The parties to the case were two women that met in the 1990s. Initially they had an intimate relationship and began living together but this later changed to a platonic relationship. They continued to live together until October 2012.

During that period the respondent tried to conceive children unsuccessfully. The appellant therefore donated some of her eggs to the respondent which were fertilised by an anonymous donor. The embryos were implanted into the respondent who gave birth to twin girls in 2008.

Later the appellant used one of the remaining embryos to also have a child. She gave birth to a girl in November 2012.

By 2012 the relationship between the two women had become fractious and the respondent had formed a new relationship and entered a civil partnership. The women’s friendship ended in October 2012 and the appellant brought proceedings for a residence order in order to gain a degree of parental responsibility over the twins. This was refused at first instance and an appeal was brought.

Modern Family Complexities Highlighted on Appeal

Under s27(1) Human Fertilization and Embryology Act 1990, the respondent is the legal mother of the twin girls even though the appellant is the biological mother.

In the lower court, the judge focused on this legal status and concluded that an existing contact arrangement was sufficient to recognise the importance of the appellant’s involvement in the children’s lives. The judge stated that it would be wrong that the biological mother should expect to share responsibility for the children and therefore refused to grant a shared residence order.

On appeal Lady Justice Black stated that, “Families are formed in different ways these days an the law must attempt to keep up and respond to developments.” She added that the, “judge failed to give weight to the fact that she is the biological mother of the children.” And that, “there needed to be some consideration given also to the appellant’s importance as the children’s genetic parent and as the mother of their full sibling, D, with whom they will form a relationship through contact.” 

Comment

The final conclusion was that all the relevant factors were not taken into account at first instance giving too much weight to the limited factors that were considered. The appeal was allowed which shows just how complex these issues have become, even for those well versed in the law.

For specialist family law advice, please contact Jeetesh Patel via e- mail JPatel@rollingsons.co.uk or by telephone on 0207 611 4848.

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