A very modern family?

By 10 January 2012Children, Law news

During the last year, the family court has been dealing with a particularly hard-fought dispute where the mother and the father of two children, P aged 10 and L aged 6, have been unable to agree the level of the father’s involvement in the children’s lives. So far, so humdrum for the family court, you might think. The interesting facet of this case is that there is not one mother but two, in a stable lesbian relationship. They comprise the ‘nuclear family’ of the two children. The father is a gay man, also in a stable relationship and with parental responsibility for the child.  He is some way outside the nuclear family unit, and wishes with his partner to play a greater part in the lives of the children than the mothers feel able currently to permit.

You can read the most recent judgment in the saga here, together with the earlier judgment by the same judge here which sets out a little more of the background. Briefly, the two couples met and got on well; they conceived by IVF and bore their first daughter, and then 4 years later, their second. Eventually, the father’s and his partner’s expectations of their involvement as parents seem to have become unacceptable to the mothers.  The mothers now consider the men to be demanding too much, a situation which has led to these court proceedings.

The dispute between the parents has also sadly led to a complete breakdown in the relationship between the men and the older daughter, although the younger daughter is not yet affected by the conflict to the same extent.

One of the most interesting things about the judgments in this case is the judge’s assessment of what the parents intended their respective roles to be when the children were conceived. The judge makes it clear that the court is bound to give consideration and weight to what was agreed at the outset; and goes so far as to state that the primary purpose of the order of the court is to give effect to that agreement (as long as it is in the best interests of the children to do so). Sadly, this was easier said than done for P and L.

The parents wrote nothing down about what was agreed regarding their shared children. Indeed there was a dispute about whether or not there was any actual meeting of minds on what would happen when the babies were born at all. On the other hand, in the years up to 2008 the relationship between the two sets of parents was good, which effectively set a precedent for the men’s involvement with the children.  The court considered it a strong indication that there had been a time when the involvement of the father and his partner was accepted and even encouraged by the mothers.

Unfortunately the judge observed that by the time of this hearing, the mothers were failing to give their elder daughter the emotional permission she needed to see the father and his partner.  As a result, she only wished to see them so that she could tell them she did not want them to be part of her life.  This was not something that the court could support.

The court proffered a stern warning to the mothers about their conduct in relation to the father and his partner. The judge even obseves that their opposition to the men having any kind of relationship with the girls is bordering on abusive behaviour that might soon necessitate the intervention of social services.

So how did the court resolve the dispute?  In the circumstances, the court felt unable to order that the older child should have direct contact with her father and his partner. Her opposition to contact is now so extreme that it would not be in her best interests to allow or order it to take place.  This is one of the terribly difficult and finely-balanced decisions the court makes every day in relation to children. However, the court did order that there should be contact between the younger child and the father, noting that perhaps this was the best way to encourage the older one towards an attitude where contact could take place one day.

The court’s mission, however, was a wider one than this. The judge makes it clear that he wishes to encourage people to think about the long-term practicalities of arranging to have a child together before that child is born.  The court’s aim is to stop other prospective parents from falling into the same type of harmful dispute. It also makes  clear that it is dangerous to attempt to fit every family into a traditional mould, and to try to apply stereotypical roles to what is inevitably each family’s unique situation.

In this case, the judge considered that the men were not in the position of a traditional separated father, but rather had agreed that the mothers would take the “primary” parenting role and the fathers a “secondary” role. The order made upheld this principle.

The idea of arranging to have a child with someone is not, of course, confined to same-sex couples. Aside from the use of surrogates, which is becoming ever more common, we know of situations where single women and single men have agreed to bear and bring up children together whilst living separately all the while, and never being romantically involved. Wherever one stands on the traditional morality of such a decision, from the child’s point of view there’s no reason why it shouldn’t be a perfectly acceptable way to grow up as long as the parents consistently put the child’s needs first and the child is not exposed to conflict; the same as in any family, separated, blended or ‘nuclear’.

As we’ve said before, it’s not necessarily what you do that makes the difference to children’s prospects – it’s how you do it. Change or objectively ‘unusual’ family circumstances are not necessarily in themselves harmful to children, but conflict certainly is.

We see all kinds of families at CFLP, in all kinds of situations. There are more non-traditional families around than you might think. Lesbian and gay parents face, in the main part, the same parenting issues as heterosexual parents.  Just like heterosexual parents, some do their jobs as parents well, and some badly. As so often when there is a dispute over children, it is a shame that the adults involved in this particular case cannot agree on a way forward to take the conflict out of their children’s lives, but it is clear that the court hopes that other prospective parents – gay or straight – who make an ‘arrangement’ to have children together will think carefully about the roles they envisage taking in the lives of those children, before they come into being.

(As a PS, because we’re on the subject, if you haven’t yet seen it do check out this remarkable clip of a young man talking about his personal experience of having same-sex parents in the face of growing opposition to gay marriage in America.)

 

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