Family Law: contact orders - a case raising novel issues

The 500th Post on this Blog

When the significant adults in a child's life are in conflict, the child can suffer emotional harm.  Disputes arise about matters such as where a child shall live ("residence") or whether the child should have contact with the other adult and, if so, what form that contact should take.   Where agreement is not possible between the disputing adults, the courts may be called upon to make orders under Part II of the Children Act 1989- e.g. residence order, contact order etc.  When such orders are made, it is far from unusual for one or even all of the parties to dislike the terms of the order but the fact remains that the order is a default position defined by the court which was made necessary by the intransigence of the adults.

In making the order, the court will have applied the fundamental rules set out in section 1 of the Children Act - namely that the child's welfare is the court's paramount consideration ("Welfare Principle") and that no order should be made unless the court considers that doing so would be better for the child than making no order at all ("No order principle").

The recent case of  Re P and L (Minors) [2011] EWHC 3431 (Fam) was a dispute about
contact with children but involved considerable factual complexity for which it is necessary to read Hedley J's first judgment delivered in July 2011 - ML and AR v RW and SW [2011] EWHC 2455 (Fam).

Essentially, the case concerned two children - (referred to anonymously as P and L) - conceived using IVF.  The significant adults were two couples: one a female same sex couple and the other a male same sex couple.  According to Hedley J, the case raised "comparatively novel issues ... which ought to be capable of being debated generally" - (2nd judgment at para 9)  

Hedley J pointed out that the case provided a vivid illustration of just how wrong these arrangements can go."  There is a need for "precise agreement as to the roles that each is to play before any attempt is made to achieve a pregnancy ..." - (see 1st judgment at para 9).  Hedley J added - "It is all too easy in these cases for biological fathers to see themselves in the same position as in separated parent cases in heterosexual arrangements, whereas this arrangement is, and was always intended to be, quite different."

A full reading of the judgments is essential and instructive ... The judgments were handed down in open court but are subject to anonymity.  Hedley J emphasised that nothing may be said and reported which might tend to identify the children or any member of the family.

In his judgment, Hedley J propounded a concept of secondary parenting to describe the significant role played by the males who had entered into an artificial insemination arrangement with the female couple.  The judge said that he had tried hard to see whether there were any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases.

"The best that I have achieved, and I confess to having found it helpful in thinking about this case, is to contemplate the concept of principal and secondary parenting. The reason why this case is not equivalent to a separated parent is that there was a clear agreement that the respondents would do the principal parenting and that they would provide the two-parent care to these children."

Rejecting the argument that the future relationship between the children and the men should relate to the children's identity only, Hedley J proceeded, in relation to the younger child, to make an order for regular staying contact.  In relation to the older child (P) indirect contact only was ordered.  He will retain judicial control of the case.

Judicial Continuity:

Hedley J was the 13th Judge that the case had come before.  The case appears to have been managed with a view to finding a conciliatory resolution.  In his first judgment, Hedley J therefore touches on the question of judicial continuity in difficult family cases and on the problem of identifying those "conflicted" cases which will require a judicial decision - see paragraphs 5 to 7.   The Family Justice Review Final Report  reported in November 2011 and stated:

"Nearly everyone has told us at every stage how important it is to have the same judge throughout a case. The aim should be judicial continuity in all family cases. We recognise that to achieve continuity will need changes to the work patterns of some judges. A willingness to adapt work patterns to be able to offer continuity should be a condition for the ability to take family work. If some courts can achieve continuity it should be possible in all.

There are practical barriers to immediate implementation in the High Court, but the President of the Family Division should consider what steps should be taken to allow judicial continuity to be achieved in the High Court. In Family Proceedings Courts judicial continuity should if possible be provided by all members of the bench and a legal adviser. If this is not possible, the same bench chair, a bench member and a legal adviser should provide continuity."