Family law and the ‘non-conventional’ family

Family|March 21st 2017

What is a ‘family’? It’s a fundamental question, and one to which I suspect most people would expect a family lawyer to know the answer. However, I doubt whether many people, lawyers or not, even consider the question. To most a family (as against an ‘extended family’) consists of a mother, a father and their children. But that, of course, is a very limited view.

The more enlightened of us recognise that the family can take many more forms than that stereotype. It is often said, for example, that the modern family can take other forms, such as the single parent family and the same-sex parent family.

Of course, the ‘non-conventional’ family is actually nothing new. There have always been families whose arrangements do not comply with conventional norms. In fact, as we will see, there is no complete definition of what is a family.

These questions arose in the case Re B (A Child by her Guardian), heard by Ms Justice Russell in the High Court last month. The case may be familiar to readers of this blog. Sadly, the child in the case, ‘B’, has been the subject of three years of bitterly contested court proceedings, including before the Court of Appeal and the Supreme Court. The hearing before Ms Justice Russell followed the decision of the Supreme Court that the courts in this country had jurisdiction to deal with the matter.

And what was that matter? It concerned an application by B’s non-biological mother for (ultimately) contact with B. The circumstances of the case were that the applicant and B’s biological mother had been in a same-sex relationship, between 2004 and 2011. B was born in April 2008, following artificial insemination treatment. Unfortunately, the relationship between the applicant and B’s mother broke down, and they separated in December 2011. For the following two years the applicant had contact with B, but in 2014 B’s mother took her, quite lawfully, to live in Pakistan. That is when the applicant began proceedings.

I shall not be explaining the judgment here – I suspect others may do that, if they have not done so already by the time this post is published. Instead, what interests me is the way in which the court, and of course the law, has grappled with the issues arising from this and other ‘non-conventional’ families. After all, whilst some of our lawmakers may reasonably be described as enlightened, most of our existing laws were in reality designed with more conventional family types in mind.

Ms Justice Russell takes up the theme in her judgment, when she considers the law applicable to the case. She says:

“The family courts are familiar with many kinds of families including those that might have once been considered unconventional and take a broad and purposive approach both to families and to family life; there is no precise definition of family life, nor can there be one. Following the decision in Re G (Shared Residence Order: Biological Mother of Donor Egg) [2014] EWCA 336; [2014] 2 FLR 897 which considered the legal framework governing parental responsibility in the expanded boundaries of legal parenthood, including same-sex couples, the only governing principle remains the paramountcy of the child’s welfare while particular consideration must be given to the part each adult can play in the child’s life. Family life is a matter of fact, one of substance, not form.”

“There is no precise definition of family life, nor can there be one.” Quite right. The family is what it is to those people who consider they belong to it, irrespective of form. And children, who have no choice of the form that their family takes, are entitled to the full protection of the law, whatever arrangements the adults in that family have chosen. And the expression of that protection is the same as always: that the welfare of the child is the court’s paramount consideration.

But the welfare principle alone cannot provide all the answers. After all, the applicant in Re B was not technically a ‘parent’, the law at the time of B’s birth not providing a means by which she could be registered as a parent, and thus obtain parental responsibility (it is for this reason that the removal of B from this country without the applicant’s consent was lawful). The applicant sought to overcome this difficulty by arguing that she was B’s ‘psychological parent’. Ms Justice Russell accepted the argument, saying: “There is no need to dwell on whether or not the applicant was a “psychological parent” for it cannot be disputed that J undertook a parental role when B was a baby and later when she was an infant and young child.” She went on:

“As the court has made a [child arrangements order] for contact between B and the applicant the court can make a parental responsibility order in favour of the applicant … In making such an order I have applied the paramountcy principle of B’s welfare … and consider that it is in B’s best interests to make an order which recognises the significant parental role that the applicant played in B’s life. It is a role that B recalls and which formed part of the foundation of her infancy and will have positively affected her sense of identity when she was very small and growing up.”

Thus the parental responsibility problem was surmounted.

The other point of interest is that B’s guardian was of the view that B required a narrative of the role the applicant played in her early life, and why she is a significant figure. Ms Justice Russell therefore agreed that the court would write a letter to B explaining what the court had decided, and why. A nice touch, ensuring that B knows of those in her family of importance to her, and is not disadvantaged by the ‘unusualness’ of the applicant’s relationship with her, which could have left her unaware of the applicant.

The full report of Re B can be found here.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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  1. keith says:

    Its all very well and good for Gay couples who want a same-sex parent family but my concern which should also the the concern of the nation is what about the children being selected to live with these same-sex parents. dont they have a say. we are supposed to make shure every child has a voice.
    it would seem thats not the case here. they are being selected like puppies in a pet shop and these poor children have no say in the matter. not good. in fact its scandalous.

    • Cameron Paterson says:

      Keith – I think you may have misunderstood John’s column. The child in question was born following artificial insemination. There was no ‘selection’ involved

      • keith says:

        it makes no difference to the point i made. it still stands across the board of the Adoption process in this country. children have no say in what adoptive parents they get. its unfair and it needs to be reviewed.

  2. John Bolch says:

    Children have no say in who their parents are, surely?

  3. John Bolch says:

    The child in this case has two parents who care about her.

    Open your mind, Keith.

    • keith says:

      i see, so its like that is it.
      We are not talking about who can care for these children we are talking about children having a voice and a choice about where they will be spending their childhood and with whom. the choice to say i would like a Mam & Dad, two Mams or two Dads.
      you sound like you dont want Adopted children to have a choice. not good, very Draconian minded.

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