Unincorporated Associations: Property Holding, Charitable Purposes and Dissolution


 

183 

Denning Law Journal 2013 Vol 25 pp 183 -196 

 

CASE COMMENTARY 
 

THE BRAVE NEW TERRITORY OF GAY 

PARENTING 
 

(A v B and C (Lesbian Co-Parents: Role of Father) [2012] 

2 FLR 607) 
 

Mary Welstead 
 

1. INTRODUCTION 
 

Many couples in same-sex relationships are as enthusiastic in their desire 

to become parents as those who are in heterosexual relationships. Adoption, 

surrogacy, sperm donation, have all enabled same-sex couples to achieve their 

parental ambitions and create families. For the most part, they have done so 

without any interference by, or involvement with, the biological parents after 

the birth of their children. 

Whilst the majority of lesbian parents tend to use sperm which has been 

obtained from an anonymous donor, some women have shown a preference to 

use a sperm donor who is known to them to become the biological father of 

their children.
 
This may be because they want to know the background, 

personality and medical history of a potential father before embarking on the 

procreative process. In some cases, it may also be because some women want 

their children to have a male role model in their life. Using a known sperm 

donor can, however, involve risks for would-be-mothers if they do not want 

him to play a significant role in the child‟s life. Their dreams of creating an 

autonomous nuclear family may be destroyed and replaced with a new form 

of extended family, consisting of three or even four parents if the biological 

father has a partner.
1
  

The tale recounted in the Appeal Court judgment in A v B and C (Lesbian 

co-parents: role of father) (2012) is a cautionary one for lesbian would-be-

parents and one of hope for potential biological fathers who are known to 

them. The Court of Appeal emphasised the paramountcy of the welfare 

principle, contained in s 1(1) of the Children Act 1989 in resolving all child 

                                                      

 Dr Mary Welstead, CAP Fellow, Harvard Law School, Visiting Professor of Family 

Law, University of Buckingham. 
1
 Re G; Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders) 

[2013] 1 FLR 1334. 



CASE COMMENTARY 

184 

contact disputes. It declined to elicit any further principles in these difficult 

fact specific cases and stated that the sexual orientation of the parents and 

their pre-conceptual agreements, or understandings, spoken or unspoken are 

either irrelevant (per Thorpe LJ) or relevant but not determinative (per Black 

LJ).  

 

2. THE FACTS  
 

The facts of the case are somewhat unusual in that the biological gay 

father, A, and the lesbian mother, B, married each other in July 2007. The 

couple, who were in their mid-thirties, had been close friends since they were 

at university together. Neither of them wished to live together as husband and 

wife after the marriage. They viewed it merely as a marriage of convenience 

which would have benefits for both of them. At the time of the marriage, B 

was living with her same-sex partner, C, whom she had met not long after 

leaving university. She introduced C to A, and they too became good friends; 

the trio socialised regularly together.  

By marrying A, B hoped that she could mollify her parents, who were 

Middle Eastern Orthodox Christians. They were unable to accept B‟s sexual 

orientation and her relationship with C. Marriage to A would disguise B‟s 

relationship with C. It would also have a further advantage because B wanted 

to have a child whose care she would share with C and she needed to placate 

her parents who disapproved of the birth of children outside of marriage. Both 

B and C thought that A, as a longstanding and trusted friend, would be an 

ideal biological father who would happily help them to become parents. A 

also felt that he would benefit by marrying B because he too wanted to father 

a child, and one with whom he could be actively involved; he did not wish to 

be a mere progenitor. He very willingly agreed to donate his sperm to 

artificially inseminate B.  

By virtue of his marriage, A would automatically acquire parental 

responsibility for any child he fathered with B.
2
 He was, however, unaware 

that, in the event of any dispute with B about such a child, his parental 

responsibility might be limited by the court.
3
 Had C and B been civil partners, 

C too would have acquired parental responsibility automatically for any child 

born to B;
4
 however, such a status was not open to them given B‟s marriage to 

A.
5
  

                                                      
2
 Children Act 1989, s 2. 

3
 Ibid s 4.  

4
 Human Fertilisation and Embryology Act 2008, s 42. 

5
 Civil Partnership Act 2004, s 3. 



THE DENNING LAW JOURNAL 

185 

Both prior to, and after, A and B‟s marriage, the three friends engaged in 

discussions, often fraught, about the future parenting of any child born to A 

and B. Not surprisingly, there was a mismatch of the trio‟s perceptions of how 

the child‟s future would pan out. They all agreed that A would play a greater 

role in his child‟s life than that of a mere sperm donor but were unable to 

reconcile their differing hopes and expectations about the precise nature of 

A‟s role. These differences remained unresolved by the time medical help was 

sought to progress the procreative venture. Both A and C attended some of the 

medical consultations with B and, throughout this stressful time, A was 

supportive of the two women. He showed particular understanding and 

sensitivity towards C and her feelings of marginalisation because of the 

attitude of B‟s family towards her.  

In December 2008, B became pregnant and, in September 2009, a baby 

boy, M, was born. At the time of the birth, A was at the hospital with his 

mother who had flown over from America to see her new grandson. A was 

registered on the birth certificate as M‟s father, the child was given his name 

as one of several others, and he was invited to attend M‟s Orthodox 

christening. C was not allowed to attend because of the presence of B‟s 

family. 

M lived with B and C in their home where he was cared for by a nanny 

which allowed both his mothers to continue in their high-powered careers. A 

visited M but was not permitted to have the child to stay with him in his home 

which was close by.  

The relationship between the three friends soon broke down. B and C 

were very stressed, partly because of their work commitments and partly 

because C continued to feel insecure about her situation vis a vis B‟s family. 

She could not accompany B and M on visits to them or be present at any event 

which involved them. C was also very concerned that, although she was M‟s 

psychological mother, her role in his life was an unstable one. In particular, 

she worried about her lack of parental responsibility which meant that that she 

had no legal authority to make any decisions relating to M if B were absent or 

worse still were to die.
6
 Her stress, she felt had an adverse effect on her 

relationship with B, and consequently also on M‟s welfare. A was equally 

concerned about his position vis a vis M. He was unable to exercise his 

parental responsibility in the way that he wanted and could not build a 

satisfactory relationship with M unless the child could stay with him on a 

regular basis.  

 

 

 

 

                                                      
6
 Children Act 1989, s 3. 



CASE COMMENTARY 

186 

The Interlocutory Hearing (2010) 

 

In 2010, soon after M‟s first birthday, A applied for a defined contact 

order to enable him to spend more time with his son.
7
 B and C responded 

promptly and applied for a joint residence order for M and a specific issue 

order to limit the exercise of A‟s parental responsibility.
8
 Mrs Justice Hogg 

made an interim order which permitted A to spend five hours at a time, once a 

fortnight, with M, in B and C‟s home. This was, of course, far less than A had 

wanted.  

 

3. THE HIGH COURT (2011)9 
 

The final hearing to decide M‟s future took place in the High Court before 

HHJ Jenkins. A argued that his position was analogous to that of a divorced 

father whose relationship with his child had been established prior to the 

breakdown of his marriage. Such fathers would normally be allowed staying 

contact with their children which would increase in frequency and duration as 

the children grew older. B and C objected to any increase in A‟s contact with 

M over and above that given in the interim order.  

HHJ Jenkins rejected A‟s argument. He stressed the importance of the 

paramountcy of the child‟s welfare in s 1(1), and the importance of the 

checklist in s 1(3), of the Children Act 1989 in determining M‟s future. In 

spite of this emphasis, he appeared to show considerable concern about the 

needs of the adults in M‟s life and particularly the needs of his two mothers. 

He acknowledged that B and C: 

 

 experienced stress and anxiety over and above that normally 
experienced in litigation over children. To a great extent this was 

because of C‟s rejection by B‟s family. It was exacerbated still further 

because of the uncertainty of C‟s position vis a vis M were B to be 

away from home, become incapacitated, or die;  

 viewed A‟s desire to play a greater role in M‟s life as a threat to their 
autonomy and their dream of a nuclear family in which M would be 

nurtured in a secure and loving home, and a threat to their relationship 

with each other;  

 had a desire to have more children, and by an anonymous sperm 
donor, which would complicate and change the family dynamics. 

 

                                                      
7
 Ibid s 8. 

8
 Ibid. 

9
 [2013] 1 FLR 149. 



THE DENNING LAW JOURNAL 

187 

A, he noted: 

 

 clearly loved M and took great pleasure in their relationship and 
wanted to play a full role in his development; 

 had been supportive of C in her difficulties with B‟s family. 
 

HHJ Jenkins accepted that the nature of the agreement between A and B 

to marry and the discussions between all three friends prior to M‟s conception 

were of importance in determining M‟s future and found that: 

 

 A and B both accepted that their marriage was one of convenience 
because of B‟s family‟s objections to her sexual orientation and to her 

having a child outside of marriage;  

 A had never received any assurance from B and C about what he 
perceived his role would be in M‟s life. He may, however, may have been 

encouraged by their conduct to believe that there might be room for 

change in the future. At times A heard what he wanted to hear;  

 B and C were adamant that they had made clear to A that any child he 
fathered with B would be brought up in a nuclear family by them. 

However, they would consult A about important issues such as M‟s 

education, health, and religion; 

 it was assumed that A would attend family events and special occasions; 

 A was told that M would be able to visit A‟s family and friends abroad 
but it had not been specified whether M would also be accompanied by B 

or C.  

 

The judge concluded that: 

 

“By agreement with the father, a child was conceived and born and on 

the basis of a relationship already created where the two mothers were 

to be the primary carers. The evidence is that they had prepared over a 

long period for parenthood on that basis, and the evidence is that they 

have established a regime of security and stability. It is plain that all 

three parties failed to get to grips with the nature of the relationship. 

The father never managed to establish an agreement to his satisfaction 

and he failed in the end to appreciate the way in which the mothers 

had thought through the stability of the relationship in the way that I 

have described.”
10

 

 

                                                      
10

 [2013] 1 FLR 149[36]. 



CASE COMMENTARY 

188 

He decided, therefore, to decline A‟s request for a joint residence order 

but to grant one to B and C. He thought that any benefit which M might gain 

from a joint residence order between his father and mother, and regular 

contact and shared holidays with him, would be outweighed by: 

 

“… confusion and disruption and the potential disruption of the 

relationship between the mothers and the child, and it is that 

relationship which provides the nurture, stability and security for M. 

That position is made more obvious by the particular anxieties which I 

have highlighted in this case, in particular the background of B and 

her family.”
11

 

 

HHJ Jenkins shared the view of Black LJ in T v T (Shared and Joint 

Residence Orders)(2010)
12

 that: 

 

“What is profoundly disappointing is to see how, in practice, instead 

of bringing greater benefits for children, shared joint residence can 

simply serve as a battlefield for the adults in the children‟s lives, so 

that even when the practicalities of how child‟s time should be split 

are agreed or determined by the court they continue to fight over what 

label is to be put on the arrangement. This can never have been 

intended when shared/joint residence orders were commended by the 

courts as a useful tool.”
13

 

 

Although HHJ Jenkins declined to restrict A‟s parental responsibility, in 

reality, the grant of a joint residence order in favour of C did diminish it. A 

was, left to play a minimal role in M‟s life. According to the judge, M had a 

right to know that A was his father and he should be allowed to develop a 

limited relationship with him appropriate to the circumstances surrounding his 

conception. Two homes and three parents for M would be an inappropriate 

response; that had never been contemplated by B and C. The father‟s contact 

with M should, therefore, be limited to a five or six-hour visit once a fortnight 

in B and C‟s home.
14

 Whilst the judge did not specifically prohibit A from 

making an application in the future to vary the contact arrangements, he stated 

clearly that: 

 

                                                      
11

 Ibid [37]. 
12

 [2010] EWCA Civ 1366.  
13

 Ibid [27]. 
14

 This was a very slight increase over the contact time contained in the order given by 

Hogg J at the interlocutory hearing. 



THE DENNING LAW JOURNAL 

189 

“Both parties have essentially invited the court to provide for the 

future, but it is not really possible to do so. There is the question of the 

power to vary for I do not see the basis for the staying contact 

changing very much in the near future.”
15

 

 

4. THE COURT OF APPEAL (2012)16 
 

The father appealed on the ground that HHJ Jenkins‟ negative statement 

relating to variation of the contact arrangements was both unfounded and 

unprincipled. 

The two mothers maintained that: 

 

 the judge‟s order did not exclude the possibility of what might happen 
in the long term; 

 it was inappropriate to apply the principles relating to contact where a 
heterosexual couple had cared for their child, prior to living apart, to 

circumstances where the biological father had never shared a family life 

with his child. To do so would risk the viability of the relationship 

between the two mothers which would adversely affect M;  

 if agreements between gay couples and prospective biological fathers, 
who were known to them, were to be ignored by the courts, they would 

be forced to abandon using such men as a means of safe procreation;  

 agreements made between biological fathers known to lesbian mothers 
should not only be respected but should rank alongside a child‟s welfare 

in the determination of parental contact disputes.  

 

Thorpe LJ gave the main judgment. He accepted that the decision of the 

High Court was challengeable, as the judge‟s comments relating to variation 

imposed, in effect, a bar on any application by A for variation of the contact 

order without the court‟s permission for some 3–4 years.
17

  

His Lordship held that HHJ Jenkins had made a fundamental error in 

relying on a paper written in 2007 by Dr Claire Sturge, an expert in lesbian 

relationships,
18

 and on a line of authority which had taken a similar approach 

                                                      
15

 [2013] 1 FLR 149 [42]. 
16

 [2012] 2 FLR 607. 
17

 Had the judge wanted to make such a restriction he would have had to have made 

an order under the Children Act 1989 s 91(14) and the duration and the extent of the 

restriction would have been set out in that order which would then have been open to 

appellate review.  
18

Claire Sturge, „Current Issues in Relation to Gay and Non-Biological Parenting‟, a 

paper presented at the 2007 Dartington Conferences and published in Integrating 

Diversity (Jordans Publishing 2008). 



CASE COMMENTARY 

190 

to that of Dr Sturge.
19

 In her paper, Dr Sturge had described the stress and 

insecurity experienced by lesbian psychological mothers vis a vis biological 

fathers and its damaging effect on their relationships with biological mothers 

and their children. HHJ Jenkins had not considered the possibility that Dr 

Sturge‟s conclusion may have altered as a consequence of later research. 

Thorpe LJ suggested that a report specifically commissioned to consider the 

situation of A, B, C and M would have been more appropriate. He stressed 

that the only principle relevant in the determination of contact between a child 

and his or her parent is the paramountcy principle in s 1(1) of the Children 

Act 1989. The approach of the High Court meant that many aspects of the 

case were not considered.
20

 Thorpe LJ, for instance, thought that A's 

involvement in the whole process of M‟s gestation and his commitment to M 

from birth should have been taken into account. He suggested that A: 

 

“… may be seeking to offer a relationship of considerable value. It is 

generally accepted that a child gains by having two parents. It does 

not follow from that that the addition of a third is necessarily 

disadvantageous.”
21

 

 

Thorpe LJ also thought that consideration should possibly have been 

given to joining M as a party to the proceedings. An experienced team could 

then have properly evaluated his welfare and ensured that the concerns of all 

three parents did not assume a greater importance.  

More particularly, Thorpe LJ was concerned about the mothers‟ argument 

that great weight should be attached to the agreement which they claimed to 

have reached with A prior to M‟s birth. He stressed the fact that: 

 

“Human emotions are powerful and inconstant. What the adults look 

forward to before undertaking the hazards of conception, birth and the 

first experience of parenting may prove to be illusion or fantasy. B 

and C may have had the desire to create a two-parent lesbian nuclear 

family completely intact and free from fracture resulting from contact 

with the third parent. But such desires may be essentially selfish and 

may later insufficiently weigh the welfare and developing rights of the 

child that they have created. No doubt they saw the advantages of A as 

                                                      
19

 Re D (contact and parental responsibility: lesbian mothers and known father) 

[2006] 1FCR 556; Re B (role of biological father) [2008] 1 FLR 1015.  
20

 Thorpe LJ suggested that, perhaps, this was because the judge had concluded that 

they were excluded by the general rule which he had extracted from the line of 

authorities on lesbian parenting which seemed to favour protecting the female parents 

from stress. 
21

 [2012] 2 FLR 607 [24]. 



THE DENNING LAW JOURNAL 

191 

first an ideal known father and later as a husband to ease problems in 

the maternal extended family. It would have been naïve not to foresee 

that the long-term consequences held disadvantages that had to be 

balanced against the immediate advantages.”
22

 

 

Thorpe LJ drew attention to the judgment of HHJ Hedley, which post 

dated the High Court decision, in which he had accepted that a new 

conceptual approach might be required to these less conventional parenting 

cases. The judge explained: 

 

“I have tried hard to see whether there are any other concepts than that 

of mother, father and primary carer, all conventional concepts in 

conventional family cases. The best I have achieved and I confess to 

having found it helpful in thinking about the case is to contemplate the 

concept of principal and secondary parenting ...”
23

 

 

“… Accordingly the only guidance that I feel able to give is threefold: 

first to stress the importance of agreeing the future roles of the parties 

before the child is born; secondly to warn against the use of 

stereotypes from traditional family models ... and thirdly to provide a 

level of contact whose primary purpose is to reflect the role that either 

has been agreed or has been discerned from the conduct of the parties 

...”
24

 

 

Thorpe LJ rejected HHJ Hedley‟s view that it was important to reflect the 

agreement of the parents prior to the child‟s birth in determining contact 

disputes. He also rejected the concept of principal and secondary parents. He 

thought that it might demean the position of a biological father who was 

known to the lesbian mothers and reduce him to the role of a mere sperm 

donor who left the stage once he had made his contribution. In some situations 

the biological father might have an important role to play in his child‟s life. It 

would be most unfair to A to categorise him as a mere secondary parent to M; 

he was not. Thorpe LJ preferred to employ the concept of primary and 

secondary carers and proceeded to rank the three parents in accordance with 

that concept. He accepted that the two mothers, B and C, were at present the 

primary carers whilst A was, currently, waiting in the wings to become a 

secondary carer. He was dependent on a court to determine whether he could 

actually become one.  

                                                      
22

 Ibid [27]. 
23

 ML and AR v RWB and SWB [2011] EWHC 3431 (Fam) [5]. 
24

 Ibid [8]. 



CASE COMMENTARY 

192 

Thorpe LJ concluded that the High Court should have considered whether 

the relationship between M and A was one which should be encouraged to 

flourish and develop and leave open the issue of future contact to be decided 

on the basis of the available evidence at that time There were too many 

unforeseeable factors to have, in effect, ruled out M having staying contact 

with A at some future date.  

A‟s appeal was allowed and the case was remitted to a Family Division 

judge to consider all the factors relevant to M‟s welfare. This would not take 

place for another year and would allow the judge to assess future contact in 

the light of how the current contact arrangements had worked out. Thorpe LJ 

ended his judgment by implying that A‟s future contact with his son might 

depend on whether the current stress of the two mothers had lessened as a 

consequence of C having joint parental responsibility with B.  

Black LJ, who has given a number of judgments relating to conflicts 

between lesbian mothers and biological fathers, added a short concurring 

judgment to that of Thorpe LJ.
25

 Her ladyship accepted that there had been a 

distinct lack of precedent for her previous judgments. New forms of family 

life were evolving which had not yet crystallised. As yet there are no concepts 

or language designed to accommodated them. The courts have had to continue 

to struggle to develop a principled approach to fact specific cases.
26

 

Black LJ reiterated the importance of the paramountcy of the child‟s 

welfare in determining these novel parenting issues. She accepted that the 

High Court had carefully considered s 1(3) of the Children Act 1989 and had 

found that certain specific factors were potentially relevant. However, her 

ladyship warned against giving those factors any greater intrinsic weight in 

future decisions than the other s 1(3) factors. 

The intentions of A, B and C prior to M‟s conception were considered by 

Black LJ to be relevant but not determinative of A‟s parenting role once M 

was born. She acknowledged the tendency of individuals to change their plans 

over time when faced with the reality of the situation. Her ladyship accepted 

that it was right for those who contemplated entering into complex procreative 

arrangements: 

 

“…to spell out in as much detail as they can what they contemplate 

will be the arrangements for the care and upbringing of their child. 

But 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. Circumstances change and adjustments must be 

                                                      
25

 See eg Re D (Contact and Parental Responsibility: Lesbian Mothers and Known 

Father) [2006] 1 FCR 556. 
26

 [2012] 2 FLR 607 [37]. 



THE DENNING LAW JOURNAL 

193 

made. And above all, what must dictate is the welfare of the child and 

not the interests of the adults.”
27

 

 

Black LJ also drew attention to importance of taking into account the 

emotional state of all the adults involved, or wishing to be involved, in the 

parenting of the child and its effect on the child‟s welfare: 

 

“Disruptions to that security and stability, even if arising indirectly 

because one of the adults is distressed, will be relevant as potentially 

harmful to the child. Sometimes potential disruption will come from 

one of the parties to the proceedings, sometimes anxiety will be 

generated from outside, as where there is apprehension about society's 

response to the child's family arrangements (as there was here in the 

very early days in relation to M's school) or pressures from other 

family members (as in the case of B's family).” 

 

In granting C a shared residence order, Black LJ thought that it might 

make her less anxious and more secure about her role towards, and 

responsibilities for, M. This could lead to the acceptance by B and C of more 

generous contact arrangements between A and M. 

Finally, Black LJ suggested that it might be preferable not to label 

biological fathers in A‟s situation as sperm donors. The roles of these fathers 

may vary from one of a close, fulfilling, relationship with their children to a 

merely nominal one. 

 

5. THE FUTURE ROLE OF PARENTAL AGREEMENTS  
 

The Court of Appeal will be applauded by biological fathers for 

acknowledging that, regardless of any agreement made in advance of the 

child‟s birth, if they help their lesbian friends to procreate, they may be 

allowed to play an important role in the lives of their children. Given the 

difficulties in determining the precise nature of any agreements reached in 

these emotional situations,
28

 and the fact that a biological father may change 

his mind once he encounters his child at birth, it may have been right for the 

Court to be wary of according importance to them.
29

 However, the Court‟s 

                                                      
27

 Ibid [44] 
28

 See Noel Arnold, „Not Straight Forward: Parental Disputes within Same-Sex 

Families‟ [2012] Fam Law 1289. 
29

 Courts may be reluctant to consider agreements or parental intentions in the context 

of procreation because they tend to be somewhat nebulous; in Re B (Role of Biological 

Father) [2008] 1 FLR 1015 [14] Hedley J found that: “ … each [parent] heard exactly 



CASE COMMENTARY 

194 

decision in A v B and C does not entirely close the debate on the role of 

agreements in the resolution of parental contact disputes. Although Thorpe LJ 

totally rejected their relevance, Black LJ took a less rigid approach. She 

recognised that it was important for parents in these alternative family cases to 

specify in as much detail as possible the arrangements for their child‟s 

upbringing and held that their intentions could be a relevant factor even if not 

a decisive one. This approach suggests that, in the future, greater 

consideration may be given to agreements between lesbian couples and 

biological fathers who are known to them.  

Whilst children are not commodities to be dealt with by rigid contracts, 

intention may well have an important part to play in determining a child‟s 

future without flouting the paramountcy of the child‟s welfare rule. 

Agreements and welfare may, in fact, be intimately related. There are 

biological fathers who, prior to parting with their sperm, may make very clear 

their intention, by words or conduct, their commitment to the welfare of their 

children and their proposals for fulfilling this commitment. It might be seen as 

contrary to the children‟s welfare to deny them contact with such a father. A‟s 

intention may not have been quite so explicit but by his conduct from the 

moment of M‟s gestation, he had implicitly shown his intention to be 

intimately involved with M. It is difficult to see how it would benefit M‟s 

welfare if this relationship were to be more limited after M‟s birth than it was 

during the period of gestation. A‟s request for staying contact with M, which 

would increase as M got older, would seem to be a natural consolidation of 

A‟s commitment to M‟s welfare.  

Other biological fathers may make their intentions clear to lesbian 

mothers, when they hand over their sperm, that they do not wish to have any 

contact with their children. If they change their mind at a later date, they 

would perhaps have a harder task in convincing a court that they have the 

necessary commitment to the child‟s welfare to permit them to play a fatherly 

role in the child‟s life.  

If the agreements between known biological fathers and lesbian mothers 

are not to be taken into account, comparisons will be made with heterosexual 

couples whose presumed agreements to bring up their children jointly are 

honoured after the couple‟s relationship breakdown. They are assumed to 

have been made for the benefit the child‟s welfare. Accusations will be made 

that children of lesbian parents and their known biological fathers are subject 

to a form of discrimination which may deprive them of a valuable male 

parental relationship. 
30

 

                                                                                                                               
what they wanted to hear and excluded everything that did not fit with their 

aspirations.”  
30

 See Duncan Ranton and Chris McIntosh, „The Judicial Approach to Alternative 

Families: Discrimination or Vive la Difference?‟ [2012] Fam Law 1135. 



THE DENNING LAW JOURNAL 

195 

6. MATERNAL BLACKMAIL 
 

The Court of Appeal‟s judgment illustrates that no matter how caring and 

loving a biological father might prove himself to be towards his child, he may 

still face one significant obstacle to contact. Lesbian mothers, who wish to 

exclude fathers from contact with their children, are likely to centre their 

argument on Black LJ‟s statement about the connection between a child‟s 

security and the stability of the mothers‟ relationship with each other. It is all 

too easy for mothers who are insecure about their relationship to maintain that 

contact between the child and his biological father is destabilising for the 

family even when their insecurity stems from other factors.
31

  

The mothers‟ argument may be difficult to challenge unless the courts are 

prepared to take a robust approach towards it. After all, a similar argument 

could equally be put forward by any mother who commences a new 

relationship with a man who assumes the role of stepfather to her children. It 

is unlikely that a court would deny the children staying contact with their 

biological father on the grounds that it might distress the stepfather and 

jeopardise his relationship with the mother which, in turn, would negatively 

affect the children.  

Children have a right, wherever possible, to know, and enjoy a 

relationship with, their parents of both genders. The insecurity of their 

mothers should not deny them this right. To accept this argument without 

evidence that it is the biological father who is the cause of the destabilisation 

of the relationship is tantamount to acceding to the blackmail of mothers.  

 

7. CONCLUSION 
 

Family life and parenting in the 21
st
 century have changed dramatically. 

These new family forms are foreign territory for parents, both biological and 

psychological, their children, and the judiciary. Many families, today, do not 

conform to the idealised model of the nuclear family so avidly desired by the 

lesbian mothers, B and C,
32

 and they are likely to increase in number.
33

 It is 

                                                      
31

 [2012] EWCA Civ 285,[45]. See also Claire Sturge, Alternative Families Seminar 

24th May 2012, 4 Paper Buildings, „The Kids Are All Right‟, A Psychological and 

Legal Perspective, 

http://www.4pb.com/media/publications/Seminar_Notes/Alternative_Familes_Semina

r_2012.pdf  
32

 See Singh v Entry Clearance Officer, New Delhi [2005] 1 FLR 308 [63]) in which 

Dyson LJ said: “The fact is that many adults and children, whether through choice or 

circumstance, live in families more or less removed from what until comparatively 

recently would have been recognised as the typical nuclear family”.  



CASE COMMENTARY 

196 

not only the courts who have to accept, and grapple with, the reality of these 

families in their search for principles which will ensure the children‟s welfare, 

it is also the parents who are responsible for their creation. To exclude known 

biological fathers, who wish to play a significant part in their children‟s lives, 

from contact with them is to indulge in the pretence that same-sex procreation 

is possible. As yet, it is not.
34

 Until it does becomes feasible, lesbian would-

be-mothers require male progenitors to help them create their longed for 

families. The sometimes selfish desires of these mothers to autonomy in their 

family life should not be allowed to prevail, in the absence of any contrary 

welfare indication, over the rights of children to have a relationship with their 

known biological fathers. 

                                                                                                                               
33

 In particular, the enactment of Civil Partnership legislation in 2004, the right to 

parental responsibility, under the HFEA 2008, for lesbian partners who are not 

biologically related to the child, and the pending legislation on same-sex marriage, are 

all likely to lead to an increase in the number of children born into same-sex families.  
34

 Same-sex reproduction may not be such a long way away, see e.g 

http://www.newscientist.com/article/mg19726413.000-editorial-getting-ready-for-

samesex-reproduction.html