Children and same sex families: known biological fathers and contact: the decision in S v D and E / T v X and Y [2013] EWHC

By Marisa Allman

Where do parents and prospective parents stand after the very recent decision in the case of S v D and E? What can parenting lesbian mothers and the men who donate sperm to enable them to have children expect if there is a disagreement between them as to the role of biological fathers in their children’s lives?

S v D and E and T v X and Y was the first decision since the law changed in 2009 to allow two women to become a child’s only legal parents from birth to consider the role of the biological father who is not legally a parent of the children. Two cases were heard together which concerned the children conceived with the assistance of S and T, a male couple, by D and E, and X and Y, two female couples. D and E were longstanding friends of S and T, and introduced them to X and Y. Both female couples had children with T or S as biological father before and after the law changed in 2009, so that some of the children had legally a mother and a father, and some of the children had legally two female parents and no legal father. In respect of all of the children T and S had some regular involvement with the children after they were born, although the extent of the relationship was disputed. In respect of all of the children, the mothers had made the positive decision to have children with the assistance of men known to them for reasons of the children’s identity and knowledge about their biological roots.

This case followed on from the decision in A v B and C [2012] EWCA Civ 285 in the Court of Appeal last year which considered the role which a legal and genetic father should have in the life of a child being brought up by two women. Lord Justice Thorpe in that case held that “A’s involvement in the creation of M and his commitment to M from birth suggest that he 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”.

In circumstances where a child has two female parents who are the legal parents of that child, the biological father is not a ‘parent’ within the meaning of the Children Act 1989. He is not, for example, statutorily obliged to financially maintain the child. He does not have parental responsibility for the child, and if he wishes the court to make an order permitting him to see the child, or allowing the child to live with him for part of the time, he needs to apply to the court for permission to make that application in accordance with section 10 of the Children Act. The case of S v D & E involved the court considering whether it should grant the two biological but not legal fathers permission to apply for a contact or residence order in respect of those children. The court granted both men permission to apply for a contact order, the proceedings are continuing.

In making this decision, the court recognised that the policy underpinning the law to allow two women to become the only parents of a child is an acknowledgement that alternative family forms without fathers are sufficient to meet a child’s need. However, the court also considered that the change to that law put the children of lesbian relationships in no different position to the children in other families. In any family someone who is not a parent of a child, or not entitled to apply for orders in respect of him/her for some other reason can ask a court to grant them permission to apply for orders in relation to that child. Commonly such applications are made by grandparents, but the category of people who can seek the court’s permission is not limited, anyone can seek permission. In the case of S v D and E the court said;

“In this regard, the position of a lesbian couple who have been granted the status of legal parents by the 2008 Act is exactly the same as any other legal parent. Having taken those rights into account, however, it is still open to the court, after considering all relevant factors, to grant leave to other persons to apply for section 8 orders. In this regard, the position of biological fathers who have been deprived of the status of legal parent by the 2008 Act is the same as any other person”

Whether the court does in fact grant permission to apply for an order relating to the child will be determined by the court on a case by case basis in accordance with the criteria in s.10(9) of the Children Act 1989, namely;
“(9) Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to;
(a) the nature of the proposed application for the section 8 order;
(b) the applicant’s connection with the child;
(c) any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it”

Applying these considerations, and looking at the facts which the courts have highlighted, the extent of the relationship which the children have had with their biological father since birth, and intentions of the parties before birth will have some importance. Women seeking a man with whom to conceive a child and men donating sperm come together in a variety of ways and with varying expectations. Trying to reach a parenting agreement before a child is conceived is a good way of coming to understand each other’s expectations, and to iron out potential problems before they arise but such agreements are not binding, and circumstances are liable to change.

If a man has donated sperm and maintained a relationship with the mothers, has shown an interest during pregnancy and then following birth, and is known to the child, and knows the child to be his, and would like some relationship with the child beyond that which the mothers feel able to offer it is highly likely that he will be granted permission to apply for a contact order. The nature of the application would not be unrealistic, and he would be able to demonstrate some connection with the child. The female parents will not be in a position to wholly exclude the father from their child’s life, even if he has no legal status as parent.

If on the other hand, the child is now 7 or 8, has never met the father, and he has shown little interest until now, the court may well consider that the connection is minimal and the risk of disruption from a contact application is too great.

These recent decisions by the courts have given a great deal of hope to men who have felt excluded by the mothers of their biological child and want to be more involved in their children’s lives. However they have also caused a great deal of anxiety to women who have had children with a known donor and until now believed that either because of their status as the sole legal parents, or because of an agreement reached prior to or at the time of a child’s birth they would be able to restrict the extent to which the biological father is involved in the child’s life. For many women it is extremely important to their child’s identity and welfare that they know who their biological father is, and as such they have made a conscious decision not to use an anonymous donor. The importance to children of knowing who their biological father is and having some connection with him is also valued by fathers and the courts. The tension in this situation arises because having chosen a biological father with whom their children can identify, the mothers may not want the relationship to develop further than this, and it is now clear that it is not open to them to limit that relationship in this way. If the court feels that the biological father has something more to offer the children than an ‘identity’ connection, then the court may well decide that the child’s welfare demands a fuller relationship than the mothers would wish to allow, even at the expense of causing anxiety to the mothers.

Only women who conceive children with truly anonymous donors via a clinic will be in a position to wholly exclude the genetic father from a child’s life if they wish to do so, because those donor fathers will not be aware of the existence of the child. Some women may have been advised by their clinic that if they are the legal parents and use donor sperm from a man known to them, but conceive at the clinic and the clinic registers the biological father as a ‘donor’, this will prevent the father from being able to make any application to court. This is incorrect advice. If a man knows he is the father of a child, he can always seek the court’s permission to apply for an order in relation to the child.

For parents of all kinds struggling with issues such as these, the advice is always for the significant adults in a child’s life to try to reach agreement on the important issues, and that this will be an ongoing process as the child grows and needs change. If it is not possible for families to reach agreement alone, then this may be achievable with some mediation or legal support. Our legal handbook for Children and Same Sex Families is intended to provide parents and professionals with guidance about issues such as these, and our authors Marisa Allman and Sarah Greenan can be contacted by email to arrange an opportunity for discussion and advice.