A v B & Anor [2012] EWCA Civ 285

A lesbian couple conceived a child using a gay male friend as sperm donor, with B marrying A for family acceptance. Disputes arose over A's contact role. The Court of Appeal allowed A's appeal, holding the trial judge erred in fixing A's future role as definitively limited.

Facts

The appellant, A, is the biological father of M, born on 17 September 2009. The respondents are B (M’s biological mother) and C, B’s long-term lesbian partner. All three adults are homosexual and old friends. When B and C wished to have a child, A agreed to be a sperm donor. Because B came from a religious family that struggled to accept her sexual orientation, B and A married on 7 July 2007 to create the appearance of a conventional family unit, though they never intended to cohabit. It was always intended that the child would be raised in the household of B and C as primary carers, with A acknowledged as biological father but in a secondary role.

Conception occurred in December 2008, and as His Honour Judge Jenkins found, this led to “cracks in the certainties that the parties had felt in optimism for the future.” Disagreements emerged about A’s role, including his expectation of overnight contact. A applied for a defined contact order on 10 November 2010; B and C responded with applications for a joint residence order and specific issue orders.

At interlocutory hearings, applications for CAFCASS involvement and expert evidence from Dr Claire Sturge were refused. Mrs Justice Hogg made an interim contact order. At the final hearing, Judge Jenkins granted B and C a joint residence order (conferring parental responsibility on C), and ordered contact of one meeting a fortnight on a six-weekly cycle. In paragraphs 41 and 42 of his judgment, the judge indicated that A’s relationship with M was to remain “a limited relationship,” that “there could not be contemplated any staying contact at this stage,” and that he did not see the basis for staying contact changing in the near future.

Issues

The appeal raised the question of how courts should approach contact disputes concerning children born into ‘alternative families’ comprising a lesbian couple as primary carers and a known biological father. Specifically, the issue was whether the trial judge had erred in effectively fixing A’s future relationship with M as limited and precluding staying contact for the foreseeable future, without a principled basis rooted in the welfare of the child.

Arguments

Appellant (A)

Mr Verdan QC, for A, accepted there was no short-term deficit in the contact order itself (which modestly extended contact), but attacked the judge’s characterisation of A’s future relationship with M as a “limited relationship” of indefinite duration. He argued the judge’s assessment was unfounded and unprincipled, and had frozen the contact arrangements when authority supported a normal developmental path with incremental increases toward staying and holiday contact.

Respondents (B and C)

Mr Howard QC submitted that as only the quantum of contact was in issue, the appellate court should be slow to interfere with the trial judge’s discretion, particularly after four days of oral evidence. He argued that Mr Verdan wrongly sought to apply principles from heterosexual separation cases to a homosexual couple who had created a nuclear family. He relied on Dr Sturge’s published paper and a line of authority including Re D, Re B, R v E and F, and Hedley J’s decisions. He emphasised the stresses on the nuclear family found by the judge, the importance of adult autonomy in creating a family by known donor arrangements, and the significance of agreements reached between the adults.

Judgment

The Court of Appeal allowed the appeal. Thorpe LJ observed that the appeal was directed at the judgment rather than the order itself, no paragraph of which could be challenged. However, the judge’s conclusions in paragraphs 41 and 42 would heavily prejudice any future application for increased contact, being effectively tantamount to a prohibition on an application for staying contact for three to four years, which, if intended, should have been formalised under section 91(14) of the Children Act 1989 with defined duration and scope open to appellate review.

Thorpe LJ identified a fundamental error: the judge had drawn from Dr Sturge’s paper and the cited authorities a “yardstick” applied as a general rule to all disputes between two female parents and an identified male parent. He held that this was wrong because all cases are fact-specific and the only principle is the paramountcy of child welfare. The judge had failed to weigh significant factors, including A’s involvement in M’s creation and his commitment from birth, which suggested he might be offering a relationship of considerable value. While it is accepted a child gains by having two parents, it does not follow that the addition of a third is necessarily disadvantageous.

Thorpe LJ expressed regret that the interlocutory applications for expert evidence and CAFCASS involvement were refused, noting that a published paper was no substitute for a bespoke report addressing case-specific facts, and wondered whether M should have been joined as a party. He was cautious about Mr Howard’s submission that great weight should be attached to adult autonomy, observing that adult plans and desires may be selfish and insufficiently weigh the welfare and developing rights of the child.

On Hedley J’s concept of “principal and secondary parents” developed in ML and AR v RWB and SWB and Re P and L, Thorpe LJ declined to endorse it, noting it risked demeaning the known donor who in some cases may have an important role. He emphasised that the primary purpose of contact is to promote the welfare of the child, not merely to reflect roles agreed or discerned from conduct. The judge should have concluded that whether the relationship between M and A should thrive and develop had to be decided by stages in the light of accumulating evidence; there were too many unforeseeable factors to allow the judge to declare the future as definitively as he did.

The matter was remitted to a Family Division judge for consideration of all factors relevant to the welfare balance, with the benefit of further assistance by way of expert reports, welfare reports or separate representation. Given potential ongoing need for judicial oversight, the case was to be reserved to a recently appointed judge of the Division to achieve judicial continuity.

Black LJ

Black LJ agreed with Thorpe LJ’s determination. Drawing on her experience from Re M (Sperm Donor Father) and Re D, she observed that courts continue to struggle to evolve a principled approach to such cases but concluded that generalised guidance is not possible because all cases are fact-specific. The immutable principle is the paramountcy of the child’s welfare, with section 1(3) of the Children Act 1989 providing a useful framework. She noted that pre-conception intentions are relevant but neither can nor should be determinative:

“no matter how detailed their agreement, no matter what formalities they adopt, this is not a dry legal contract. Biology, human nature and the hand of fate are liable to undermine it and to confound their expectations.”

She added that the practice of labelling the father as a “donor” in cases of known fatherhood may merit reconsideration, as it may misleadingly convey that the father is giving his child away.

Implications

The decision reinforces that in disputes concerning children born to lesbian couples with a known biological father, there is no general rule or presumption that the father’s role must be limited or secondary. Every case turns on its own facts, with the welfare of the child under section 1 of the Children Act 1989 being the paramount consideration. The judgment discourages reliance on general yardsticks or categorisations such as “principal and secondary parents” derived from academic literature or prior authorities, in place of fact-specific welfare analysis.

The decision also highlights the practical importance of obtaining bespoke expert evidence, CAFCASS involvement, or separate representation of the child in such cases, rather than relying on generalised published material. It cautions that where a judge intends effectively to prevent further applications for a period, this should be done explicitly under section 91(14), with defined duration and scope amenable to appeal.

The judgment further signals that pre-conception agreements between adults, while relevant, are not determinative and cannot displace the welfare analysis; circumstances evolve and the child’s welfare must dictate outcomes. The judgment matters to practitioners and families navigating known-donor arrangements within same-sex parenting contexts, indicating that the courts will adopt a staged, evidence-based approach to the development of contact rather than fixing outcomes definitively at an early stage. The Court expressly declined to lay down broader guidance, recognising the fact-specific nature of these disputes and preserving flexibility for future cases.

Verdict: Appeal allowed. The Court of Appeal set aside the trial judge’s conclusions in paragraphs 41 and 42 regarding the limited and fixed nature of A’s future relationship with M, and remitted the matter to a Family Division judge for a fresh consideration of all factors relevant to the welfare balance, with the benefit of expert reports, welfare reports or separate representation as appropriate, and with the case to be reserved to a single judge for continuity.

Source: A v B & Anor [2012] EWCA Civ 285