Court of Appeal overturns contact decision in epic legal battle between lesbian couple

Cohabitation|Family|Relationships | 8 Nov 2012 1

In the latest twist to a ten year legal battle between a former lesbian couple who conceived using IVF, the Court of Appeal has overturned a decision to deny one of the partners contact with the children.

This was the third trip to the Court of Appeal for the couple in a nine year legal struggle. The resident mother, who lives in Cornwall is estimated to have spent an astonishing £200,000 trying to prevent her former partner from having contact with the children, now aged 13 and 11. In addition to the three Court of Appeal visits, the case even reached the House of Lords in 2006.

According to a report in the Telegraph, the children have “never known a time when their parents were not at war”. What a sad phrase – and what those children must be going through!

The relationship between the couple – referred to in court reports as ‘CG’ and ‘CW’ – ended back in 2003. At the end of 2008, the estranged partner CW, sought a legal order granting her shared residence and contact with the two children. This followed the breakdown of a previous contact arrangement after which CG tried to end all contact between the children and her former partner.

CW’s application reached the courts in April this year. Unfortunately for her, Judge Nicholas Vincent rejected the application, on the ground that the children no longer saw contact with her as “valid or worthwhile”. That ruling meant the end of all contact between her and children who had been conceived, no doubt, with only the brightest of hopes for the future.

CW appealed, and  this time the Court of Appeal took a different view, overturning the previous decision the grounds that the children’s views of CW had influenced by CG’s attitude – a commonsense conclusion in many ways.
Sitting with Lord Justice Lloyd and Lady Justice Black, Lord Justice Thorpe said:.

“Whilst the children’s wishes were and remain a very important factor there is a danger in taking them too literally. First, their criticisms of CW have no objective foundations. She has always been a warm and loving parent who has never failed these children. Second, there is a clear mismatch between what the children say and how they behave.”

He also observed, wisely in my view: “A subtle but familiar strategy is for the primary carer to declare that it is for the children to decide, and they go whenever they please, whilst at the same time projecting a clear message that she does not wish or expect them to go.”

Have I seen and heard this strategy being employed by embittered parents embroiled in contact disputes over the years? Of course I have. So I certainly think Lord Justice Thorpe deserves a round of applause for that particular observation.

CG had shown , he said, a “determined intention to ultimately estrange her former partner and her family from the children”. This was in spite of repeated efforts by both the courts and social services to encourage the former couple to reach agreement and reasonable arrangements for contact between the children.

The courts were likely to take a dim view of further failure by CG to reach reasonable contact terms, said Lord Justice Thorpe “If she cannot sustain the relationship between the children and CW then consideration would have to be given to moving them to CW’s home.”

And that is the crux of the case: CG has been granted residence, and arguably been given a fair amount of leeway by the courts, in part because she is the children’s gestational and biological mother. But now she is walking on thin ice.

Ironically this was the view originally taken by the Court of Appeal, only for this to later be overruled by the House of Lords!

When dealing with ‘implacably hostile’ mothers, who cannot or will not reach reasonable terms with their former partners, the courts have at times taken the view that more harm will be done to children by not removing them from the care of that parent than by leaving them with her – and that applies to gay parents as much as it does to straight ones.

CW’s application will now return to the High Court for further consideration of CW’s residence application. So we haven’t heard the last of this case, even after nine years!

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comment(1)

  1. Russell Armstrong says:

    He also observed, wisely in my view: “A subtle but familiar strategy is for the primary carer to declare that it is for the children to decide, and they go whenever they please, whilst at the same time projecting a clear message that she does not wish or expect them to go.”
    Absolutely lovely, a top Judge acknowledging that parental influence can and does get used in disputes like this, where the main carer is trying thier damdest to block the other parent from having contact.
    This is one piece of case law that I ope will be used again and again against the very people who purport to act in the “childrens best interest” when in fact they are using it as a smokescreen for their own navarious and machaveallian ways
    When done Lord Justice Thorpe for articulating what should have been said years ago.
    Now can this attitude get filtered down to the lower courts so that they act in a more appropriate manner in future please?

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