A woman who donated her eggs to her former lesbian partner has successfully appealed against an order awarding the partner sole custody.
The couple in question met during the 1990s and formed a relationship. Eventually the couple decided to become parents and the woman (the ‘appellant’) donated eggs to her partner, and these were fertilised by an anonymous donor. She gave birth to twin girls, now five years old, in 2008.
Over time, the couple’s relationship had become “platonic” but they continued to live together until October 2012. The following month the woman gave birth to her own daughter, using one of the embryos created during the earlier procedure.
At the Court of Appeal, Lady Justice Black said of the former couple:
“There were what may best be called “scenes” as the friendship between the parties came to a final end.”
The woman’s former partner, the ‘respondent’, began a new relationship with another woman, and has now entered a civil partnership with her.
The appellant continued to see the twins but relations between the former couple became increasingly strained. The respondent accused the appellant of selfishness and of not having the twins’ best interests at heart.
Last summer, shortly before a scheduled hearing at Portsmouth County Court into contact arrangements, the two women managed to resolve many of their issues, an achievement described by Lady Justice Black as “to the parties’ enormous credit”.
The appellant abandoned a bid to have the girls live solely with her, and in return they agreed that she should have ‘substantial’ contact with them.
Lady Justice Black noted:
“The respondent acknowledged that the appellant is an important adult in the children’s lives, that they have spent considerable periods of time with her and her family, and that this should continue.”
However, the original judge went to award sole custody (‘residence’) of the twins to the respondent, their birth mother.
Under the Human Fertilisation and Embryology Act 1990, the birth mother is the twin’s legal mother, despite her partner’s donation of eggs and therefore DNA.
In the Court of Appeal, Lady Justice Black noted the judge’s decision:
“She began her judgment by explaining that she thought it appropriate that the order made by the court should recognise that only one of the parties was the twins’ mother and therefore she should have sole parental responsibility for them. In contrast, she remarked that the appellant is not a parent of the children and that her status should not be elevated in that way. She considered that the contact arrangement, coupled with the agreement to provide information about education and medical issues and for a limited delegation of parental responsibility was sufficient to recognise the importance of the appellant’s involvement in the children’s lives.”
However, the Court of Appeal has now overturned that decision . Lady Justice Black said:
“I have formed the view that in her decision, the judge did not take into account all the factors that were relevant and that she attributed disproportionate weight to some of the factors that she did consider. I would therefore set her decision aside. That leaves the case in an unsatisfactory position. The appellant asked us to determine the application for shared residence ourselves. This would have the considerable benefit of freeing the parties from the emotional and financial expense of further litigation. However, given what I have said about the need to make some factual findings as a basis for the decision, I do not think this is a real option.”
“I have therefore concluded that there is no choice but to remit [send back] the matter for a fresh hearing.”
However, the judge concluded:
“I would end with some words to the parties. I urge them to reach agreement about the issues that remain between them. One can well see that, subject to issues about interference and undermining, a judge might be inclined to recognise the distinctive features of this case by making a shared residence order to confer parental responsibility on the appellant, given her past and continuing involvement in the twins’ lives, her role as their genetic parent, and the fact that she is the mother of their sibling. Whether that turns out to be appropriate will depend very much upon what transpires in the new hearing and I express no concluded view about it. What I am, however, quite confident about is that a further hearing should be avoided if at all possible. I repeat what I said in T v T  EWCA Civ 1366 at §49:
‘Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in this way is likely to remain with the children into their own adult lives.’ ”