G (Children), Re

A shared residence order sought to confer parental responsibility must be decided by the children’s welfare, not by adult equality or legal parenthood alone. Legal parenthood remains important, but the court must assess the whole picture, including genetic, gestational, social and psychological parenthood, past and future involvement, sibling relationships and the role of other adults with parental responsibility. Genetic parenthood or a parental role does not dictate the result. A feared misuse of parental responsibility may be relevant, but the judge must identify the evidential basis, likely form and continuing significance of the risk. Where disputed facts are central and cannot fairly be resolved from the papers, proportionate oral evidence is required. The decision was set aside and remitted for rehearing.

The appellant was the twins’ genetic mother. The respondent carried and gave birth to them and was their legal mother under section 27(1) of the Human Fertilisation and Embryology Act 1990. After the parties’ relationship ended, the twins lived with the respondent, while the appellant maintained substantial contact.

The appellant sought a shared residence order because this was the only route by which she could acquire parental responsibility. Portsmouth County Court, deciding the remaining issue on submissions and without resolving disputed facts, refused the order. The appeal concerned whether the judge had treated legal motherhood as decisive, failed to consider the appellant’s genetic and parental role, and relied on insufficiently established risks of interference. The central issue was whether the refusal was in the twins’ best interests.

The Court of Appeal allowed the appeal, set aside the order refusing shared residence, and remitted the application for a fresh hearing. Black LJ gave the judgment; Moses LJ and Kitchin LJ agreed.

1. Welfare and parenthood. The paramount consideration was the twins’ welfare. The court had to evaluate the whole picture. The respondent’s legal and gestational parenthood was significant, but it was not conclusive. Relevant matters included the appellant’s genetic parenthood, her past and future involvement, whether the children regarded her as a parent, her relationship with their full sibling, and the significance of another adult who already had parental responsibility. The court relied on the welfare approach in A v B and C (Lesbian Co-Parents: Role of Father) [2012] EWCA Civ 285 and the discussion of different forms of parenthood in In re G (Children)(Residence: Same-sex Partner) [2006] UKHL 43.
2. Shared residence and parental responsibility. It was accepted, consistently with Re G (Residence: Same-Sex Partner) [2005] EWCA Civ 462, that a shared residence order could confer parental responsibility. Genetic parenthood or a parental role did not, however, require such an order. Preconception intentions and adult plans could be relevant but were not determinative. Equality between the adults in relation to all three children was relevant only insofar as it affected the twins’ welfare.
3. Risk of misuse. The possibility that parental responsibility would be misused could be relevant and could justify refusal. The judge had to identify the evidential basis of the risk, the form of interference anticipated, and why the risk remained material. The reference to the appellant’s abandoned threat to involve the press did not adequately explain the continuing risk.
4. Fact-finding and disposal. The disputed attitudes of the parties were central, yet neither party had given evidence and no findings had been made. The decision was therefore built on insufficiently secure foundations. The rehearing judge should determine which factual issues matter and what proportionate oral evidence is required, without resolving every dispute. The Court of Appeal expressed no concluded view on whether a shared residence order should ultimately be made and encouraged agreement if possible.

• Portsmouth County Court: Her Honour Judge Black refused the appellant’s application for a shared residence order after the parties agreed that the issue could be determined on submissions without oral evidence or factual findings.
• Court of Appeal (Civil Division): The appeal was allowed. The refusal was set aside and the application was remitted for a fresh hearing.