Couples’ Dispute over Children

In the recent case of Re WB (children) (contact) an application had been made for a residence order in relation to two children conceived by in vitro fertilisation. The applicants were the children’s biological father and his male partner. The respondents were the mother and her female partner. The couples had initially agreed the mother would be the children’s mother, the mother’s partner would be the co-parent, the father would be the father, and the father’s partner would be the stepfather.

The children lived with the mother and her partner, but both men were actively involved in the children’s lives until the relationship between the two couples broke down. A dispute then arose about the men’s roles and their contact with the children.

The Judge introduced a distinction between principal and secondary parenting. It was ruled that the women were principle parents while the men were the secondary parents. He struck out the residence application, but made a contact order in favour of the men.

However, many solicitors believe that this principle should not be used as a universal solution where the roles of adults in a co-parenting arrangement have to be determined. Instead the principle should be fact-dependent as it will not always be appropriate or in the best interests of the child. The biological father may be a purely donor father with little involvement in the child’s life, or it might be that the donor father is actively involved in his parental role. Therefore the determining principle should always be the child’s welfare.

However the case does identify the importance of having a clear agreement from the outset. While most expecting parents will probably not be considering the legal roles of the parties involved, a lot of potential problems are solved later in life by defining and recording the roles that each parent and significant person will have when a child is conceived, with the intention that he or she will live with one parent and partner as the nuclear family.


 

Elizabeth Bettes

Published on 14/11/2011