A lesbian couple had split up and disputed the care of the children. An order had been made but then, in breach of that order, one removed the children overnight to Cornwall. An argument was made that the court had failed to give proper weight to the considerations from the 1989 Act and had ignored the close relationship between the children and their natural mother. The children were CGH’s children by virtue of the 1990 Act.
Held: CG’s representations failed. The dispute here was between two biological parents, and the earlier case law did not apply directly: ‘we have moved into a world where norms that seemed safe twenty or more years ago no longer run. ‘ The natural mother did not in such a situation have any presumed priority.
Hallett LJ: ‘I am very concerned at the prospect of removing these children from the primary care of their only identifiable biological parent who has been their primary carer for most of their young lives and in whose care they appear to be happy and thriving. She is both a biological parent and a ‘psychological’ parent. Mindful as I am of the changing social and legal climate, on the facts of this case, I would attach greater significance perhaps than some to the biological link between the appellant and her children.’
Judges:
Lord Justice Thorpe Lord Justice Laws Lady Justice Hallett
Citations:
[2006] EWCA Civ 372
Links:
Statutes:
Children Act 1989 1(3), Human Fertilisation and Embryology Act 1990 27(1)
Jurisdiction:
England and Wales
Citing:
Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
See Also – In re G (Children) (Shared Residence: Same Sex partner) CA 6-Apr-2005
A lesbian couple had children by IVF. After the relationship failed, application was made by the non-resident partner for a shared residence order. She appealed a refusal.
Held: the judge had erred. The report from Cafcass had recommended the . .
Cited – In Re KD (A Minor) (Ward: Termination of Access) HL 1988
The local authority sought to terminate parental contact with a child taken into care under a wardship.
Held: The court had to consider the human rights of the parent as against the welfare interest of the child. Lord Oliver of Aylmerton said: . .
Cited – In Re D (A Minor) (Residence: Natural Parent) FD 17-Jun-1999
Where contested residence proceedings were bewteen natural, and other potential families, the presumption in favour of the natural parents was such as to require the court not to conduct the balancing exercise. The existence of grounds for concern . .
Cited – In Re W (A Minor) CA 23-Mar-1993
It was right that public should know of the high cost of family litigation. . .
Cited – Re P (A Minor)(Custody) 1983
. .
Cited – In Re H (Minors) (Abduction: Custody Rights) HL 1991
The House addressed the question whether wrongful removal and wrongful retention were mutually exclusive concepts. The issue arose in the context of the commencement date for the 1985 Act as between the two States involved.
Held: For the . .
Cited – Re B and A and C and D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) No 2 FD 12-Jan-2006
In deciding whether or not to make a parental responsibility order in favour of the child’s father Black J said: – ‘Perhaps most importantly of all, I am considerably influenced by the reality that Mr B is D’s father. Whatever new designs human . .
Cited – Re H CA 2002
Thorpe LJ said: ‘in weighing the rival claims of the biological parent over the psychological parent, the court must arrive at its choice on the application of the welfare test, the paramountcy test contained in s 1, having particular regard to the . .
Cited – C v C (A Minor) (Custody: Appeal) 1991
. .
Cited – Re K 1991
The natural bond and relationship between parent and child gives rise to universally recognized norms which ought not to be gratuitously interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates . .
Cited by:
Appeal from – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 05 July 2022; Ref: scu.240097