A v B & Anor

In disputes concerning a child born into an alternative family, there is no general rule fixing the role of a known biological father. The overriding and fact-sensitive consideration is the child’s welfare under the Children Act 1989.

Pre-conception intentions and adult agreements may inform the welfare assessment, but cannot determine it. Contact must promote the child’s welfare, rather than implement an adult’s agreed parenting role. A court should not use labels such as primary or secondary parent to predetermine the child’s future relationship with an adult. Where future contact depends on uncertain developments, it should be assessed progressively in the light of accumulating evidence.

A was M’s biological father. B, M’s biological mother, and C, B’s long-term female partner, had intended that M would live with them and that A would have a secondary role. A and B had married for reasons connected with B’s family, with the consequence that A had parental responsibility.

His Honour Judge Jenkins made a joint residence order for B and C, giving C parental responsibility, and ordered fortnightly daytime contact for A. Although the order did not prevent a later application, the judge’s reasons indicated that staying contact should not be contemplated for the foreseeable future.

A appealed, contending that the judge had wrongly confined his future relationship with M by applying a general model derived from cases involving lesbian parents and known fathers.

1. Appeal allowed and remitted. The Court of Appeal held that the trial judge’s present contact order was not itself objectionable, but his reasoning effectively foreclosed an application for staying contact for three or four years. That conclusion was capable of prejudicing a future application and required appellate intervention.
2. The judge had erred by treating expert material and earlier authorities as providing a general rule for disputes between two female parents and an identified biological father. Such cases are necessarily fact-specific. The controlling principle is the paramountcy of the child’s welfare under the Children Act 1989.
3. The evidence that B and C provided M’s existing nurture, stability and security was important. So too were A’s involvement in M’s conception and life, and the potential value of his relationship with M. It does not follow that a child with two parents is necessarily disadvantaged by a meaningful relationship with a third adult.
4. The parties’ pre-conception intentions and their agreement were relevant circumstances, but were not a binding contract governing M’s upbringing. Adult autonomy and expectations must yield to welfare. The court did not endorse categorising adults as principal and secondary parents, and held that contact must primarily promote the child’s welfare rather than reflect an agreed role.
5. Whether A’s relationship with M should develop, including towards staying contact, had to be decided in stages as evidence accumulated. The matter was remitted to a Family Division judge for a fresh welfare assessment, with consideration of expert or welfare evidence and, if appropriate, separate representation for M. The court also indicated that judicial continuity should be secured if possible.

• Court of Appeal (Civil Division) — Allowed A’s appeal and remitted the welfare assessment to a Family Division judge: [2012] EWCA Civ 285.
• High Court — His Honour Judge Jenkins, sitting as a judge of the High Court, made a joint residence order for B and C and a fortnightly daytime contact order for A on 15 July 2011. The lower judgment citation was not stated in the judgment.