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 and or contact. The other mother took the children secretly to Cornwall.
Held: Baroness Hale said: ‘The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it ‘rules upon or determines the course to be followed’. There is no question of a parental right. As the Law Commission explained, ‘the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child’ or, as Lord MacDermott put it, the claims and wishes of parents ‘can be capable of ministering to the total welfare of the child in a special way’.’ The court recognised three separate kinds of parenthod, genetic, gestational and social. As to the facts of the case: ‘the mother had behaved very badly. She, together with MG, had deliberately disobeyed the court’s order. This had required considerable planning and the deception of her own solicitor. More importantly, it had been a terrible thing to do to the children. The aim had been to frustrate the contact arrangements ordered by the court. However, once she had been located and contact arrangements reinstated, she had abided by them.’
The appeal succeeded: ‘the courts below have allowed the unusual context of this case to distract them from principles which are of universal application. First, the fact that CG is the natural mother of these children in every sense of that term, while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future. Yet nowhere is that factor explored in the judgment below. Secondly, while it may well be in the best interests of children to change their living arrangements if one of their parents is frustrating their relationship with the other parent who is able to offer them a good and loving home, this is unlikely to be in their best interests while that relationship is in fact being maintained in accordance with the court’s order. ‘
Lord Nicholls of Birkenhead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond
Times 27-Jul-2006,  UKHL 43,  1 WLR 2305,  1 AC 576,  1 FLR 601
Guardianship of Infants Act 1925 1, Children Act 1989 1
England and Wales
Cited – In re E (Minors) (Residence Orders: Imposition of Conditions) CA 30-Apr-1997
A residence order can not be accompanied by an order as to where a parent with care must live in the UK or with whom. An appeal may well arise in which a disappointed applicant will contend that section 13(1)(b) of the Children Act 1989 imposes a . .
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 . .
Appeal from – 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 – Re O’Hara 1900
(Ireland) FitzGibbon LJ SAID: ‘In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent . .
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 . .
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: . .
Appeal from – CG v CW and Another (Children) CA 6-Apr-2006
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 . .
Cited – Re K (A Minor) (Ward: Care and Control) CA 1990
Waite J said: ‘The speeches in the House of Lords make it plain that the term ‘parental right’ is not there used in a proprietary sense, but rather as describing the right of every child, as part of its general welfare, to have the ties of nature . .
Cited – Re H (A Minor) (Custody: Interim Care and Control) CA 1991
Lord Donaldson of Lymington MR said: ‘So it is not a case of parental right opposed to the interests of the child, with an assumption that parental right prevails unless there are strong reasons in terms of the interests of the child. It is the same . .
Cited – Re W (A Minor) (Residence Order) CA 3-May-1993
There is a rebuttable but strong presumption that a child should be with his or her natural parents. Waite LJ said: ‘The authorities which have been cited by Balcombe LJ illustrate the difficulty of finding, within the infinite variety of . .
Cited – Hodak v Newman and Hodak 1993
(Family Court of Australia) Lindenburgh J said: ‘I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, . .
Cited – Rice v Miller 10-Sep-1993
(Family Court of Australia) Whilst there is a legislative presumption regarding equal shared parental responsibility between parents there is no presumption in favour of parents (jointly or severally) as regards the placement of children nor a . .
Cited – Re Evelyn CA 1998
Cited – Re C (MA) (An Infant) 1966
The court heard psychiatric evidence of the potential depth of the bond between father and child. . .
Cited – V-P v V-P (Access to Child) CA 1978
The court discussed whether more potent encouragement to comply with court orders may be to contemplate changing the child’s living arrangements. Ormrod LJ said: ‘I do not wish to issue threats, but the mother should, I think, realise this: the . .
Cited – Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) 2006
Cited – In re S (A Child) CA 12-Aug-2008
The mother of the child applied for leave to appeal against an order under section 38(9), seeking a residential assessment.
Held: The judge had been exercising a discretion which he had done properly, and the court would not interfere with it. . .
Cited – Holmes-Moorhouse v Richmond Upon Thames HL 4-Feb-2009
The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing.
Held: The authority’s appeal succeeded.
‘When any family court decides with whom the children of separated . .
Cited – In re B (A Child) SC 19-Nov-2009
The Court considered a decision granting to a father the care of his child who appeared to have become happily settled with the maternal grandmother.
Held: The grandmother’s appeal succeeded. The judge and court of appeal had misunderstood the . .
Cited – D and L (Minors Surrogacy), Re FD 28-Sep-2012
The children had been born in India to a surrogate mother. The biological father and his civil partner sought a parental order. The mother could not be found to give her consent. She had been provided anonymously through a clinic.
Held: The . .
Cited – Re D (A Child) CA 26-Mar-2014
F appealed against the removal of his parental responsibility for his son. M and F were not married, but F had been named on the birth certificate. He had later been convicted of sexual assaults against two daughters of M by an earlier relationship. . .
Cited – AB v CD FD 24-May-2013
The Applicant AB, a lesbian woman aged 37, applied for contact to twin boys, E and F, aged 3. In making that application, she described herself as the boys’ ‘parent’; she ws so defined on the boys’ birth certificates. For the first 17 months of . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2021; Ref: scu.243431