CG v CW & Anor (Children)

In a residence dispute between a biological mother and a non-biological parent in a same-sex family, the biological link is significant but creates no general presumption, or requirement for compelling reasons, before care is transferred. The court must apply the welfare and paramountcy tests under section 1 of Children Act 1989, with particular regard to the section 1(3) checklist. A long-term non-biological carer may be the child’s psychological parent. A conditional recommendation to retain residence may be rejected where the court lacks confidence that orders will be obeyed and the child’s relationship with the other parent maintained. An appellate court should not disturb a finely balanced welfare decision reached after proper checklist analysis and full reasons.

CG and CW cohabited in a lesbian relationship and raised two daughters, A and B. CG conceived both children through anonymous donor insemination and was their biological and legal mother; CW was the non-biological parent. After separation, earlier orders provided for shared residence and restricted relocation. CG secretly moved the children from Leicester to Cornwall in breach of those arrangements.

Following a trial in the High Court Family Division, Bracewell J granted CW primary care. CG appealed, arguing that the biological relationship had been given insufficient weight and that the welfare checklist in section 1(3) of Children Act 1989 had not been properly applied. The appeal concerned whether biological motherhood created priority in a same-sex parenting dispute and whether the first-instance welfare evaluation was open to appellate interference.

1. Disposition. Permission to appeal was granted, but the appeal was dismissed. Laws LJ and Hallett LJ agreed with Thorpe LJ. Hallett LJ expressed hesitation about removing the children from their only identifiable biological parent, but found no proper basis for appellate intervention.
2. Biological relationship. Thorpe LJ rejected the submission that a biological mother could be displaced only by compelling factors. The House of Lords authorities in J v C [1970] AC 668 and Re: KD [1988] AC 806, together with the later authorities relied upon, concerned disputes between a biological parent and a non-parent. Their principle could not be extended generally to a dispute between two parents in a same-sex family. Biological relationship remained a significant factor, but its weight depended on the issue, the parties and all other welfare considerations.
3. Psychological parenthood. In a same-sex family, a non-biological partner who had provided settled care could be the child’s psychological parent. A child’s attachment might be to either parent more strongly or to both substantially equally. The competing claims had to be determined by the welfare and paramountcy tests under section 1 of Children Act 1989, with particular regard to section 1(3). The approach in Re: H [2002] 3 FCR 277 was applied.
4. Conditional welfare recommendation. The guardian’s recommendation that the children remain with CG was conditional upon CG complying with orders and preserving the children’s relationship with CW and her family. The court had to balance the emotional harm of moving the children against the future emotional harm of their further marginalisation. Bracewell J was entitled to reject the recommendation because she lacked confidence in CG’s future compliance. The guardian’s proposed assistance order was insufficient to control the long-term risks.
5. Appellate review. The first-instance judge had expressly applied the welfare checklist, considered the relevant evidence, heard the witnesses and gave full reasons. In those circumstances, and despite the finely balanced nature of the decision, the Court of Appeal should not substitute its own assessment.

• Court of Appeal (Civil Division). On 6 April 2006, permission to appeal was granted but the appeal was dismissed: [2006] EWCA Civ 372.
• High Court of Justice, Family Division. Bracewell J, after a three-day trial of competing applications, granted CW primary care of the children.
• Court of Appeal (Civil Division). In an earlier appeal by CW, the practical arrangements were left undisturbed but CW’s legal status was strengthened: [2006] 1 FCR 436.
• Telford County Court. Judge Hughes refused CW’s application for shared residence but imposed a restriction preventing CG from relocating the children.