Changing traditions and definitions

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In order to answer this question one must first assess and consider the law relating to the family unit. This will require an in-depth analysis of the rationale behind the judgment of Re G[1], and whether the law has enhanced the changes in social normality and whether this should be promoted or restricted in its application. It is clear from the imposition of a family unit, that a ‘family’ needs defining. For the purposes of clarity, a ‘family’ can be defined in many different circumstances. The family unit was thus described as an institution, nurtured within the framework of marriage. It is clear from human nature that families did exist outside of the sphere of marriage, but these were classed as statistics and not normality. However, this stance has become increasingly strained since the interception and introduction of contemporary human rights law. This has extended to some unusual situations. As was seen in the case of Keegan v Ireland[2]. In this case the idea that two people whose only connection is by blood and had never in fact met was capable of being a family within the principles of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. This Article enshrines the right to a private and family life. As such the conventional sense of a family being a father, a mother and 2.4 children is still relevant, but does not indicate the full extent to that of a family unit. It is worth stating at the outset that the case of Re G[3] will require further examination. This case concerned the care of two children that had been conceived via artificial insemination for a lesbian couple. In this particular case, the couple concerned had been together for a period of 7 years and decided that they wished to have children together. Following this decision, the younger female in the relationship, CG, was artificially inseminated from an anonymous donor. As a result Child A was born in 1999 and Child B in 2001. The non-biological parent, CW had a 17 year old son from a previous relationship, and all three children were brought up as siblings. Unfortunately, the relationship ended in 2002. As such CG and the two children moved into a new property, whilst CW and her new partner stayed in the former family home. As such CW applied for contact and a shared residence order. Due to this application, CG made a number of emotive decisions regarding the children. These included enrolling the children in a new nursery and re-locating the children to her new partner’s home. During the led up to the hearing, CW continued to have staying contact from Friday to Monday on alternate weekends. During this period, however, CG began to question CW’s involvement with the two children, and was adamant that CW should not have parental responsibility[4] of the children, due to the fact that she was not the children’s biological parent. Due to this hostility, CG gave evidence at the final hearing that she wished to move the children to the Cornwall area. The expert CAFCASS[5] officer was against the idea as it was believed that it was in the best interests of the children to have contact with the CW. The Judge at first instance agreed with this stance and ordered CG to remain living in the Leicester area, and that good contact by retained, whilst disclosure was to be given in relation to medical treatment and continuing educational requirements. The Judge did, however, reject the application for shared residence, due to the continuing hostility between CG and CW. Consequently, CW appealed[6] against the refusal of a shared residence order. Thorpe LJ permitted the appeal on the basis that CG was attempting to cut CW out of the children’s lives. CG subsequently decided to uproot the children and take them to Cornwall without informing CW. Consequently, CW applied for an order to locate the children[7]. CG applied for permission to move the children to Cornwall, whilst CW applied for a residence order[8] in her favour. One of the larger issues invoked by this case was CG . However, one of the main issues that was created by the facts of this case was CG flagrant disregard for the court’s order. This, obviously, had larger concerns as to whether any future orders would be obeyed. However, Bracewell J concluded that the risk of emotional harm to the children if they were removed from CG's total care, outweighed the potential risk of CG trying to marginalise CW’s role in the children’s lives. It was believed that in allowing CG to disregard the order of the court, she showed the intention of not promoting the relationship between CW and the children. The importance of this case was highlighted by the Court’s acceptance of the role that a non-biological parent can play in a child’s life. As such the Court seems willing to allow and adhere more closely to the ascertainable wishes of the children, whilst identifying which parent is the better at providing certain stabilities. It was further allowed, in this case, that CW was to have the majority of the term-time care of the children. It is arguable that this was due to CG’s refusal to follow the order preventing her from leaving the Leicester area. However, the role allowed by the non-biological parent had to be weighted against the significance of the biological parent’s ascertainable wishes. This was highlighted by the statement from Hallet LJ. It was stated that ‘I am very concerned at the prospect of removing these children from the primary care of their only identifiable biological parent……. Mindful as I am of the changing social and legal climate, on the facts of this case, I would attach greater significance perhaps than some to the biological link between the appellant and her children’. It is clear from this statement that the court’s are still mindful of the growing trend of removing children from their nature parent(s) into an institution. This was highlighted by the House of Lords, on subsequent appeal. According to Baroness Hale of Richmond, ‘I am driven to the conclusion that the courts below have allowed the unusual context of this case to distract them from principles of universal application. First, the fact that CG is the natural mother of these children in every sense of the term, while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what is best for them now and in the future’. This clearly identifies the growing trend of the evolving family unit. This, by its own definition, is an evolution. The differing concepts was demonstrated in the case of Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father)[9]. In this case, the concepts of a biological parent and a psychological parent was fully identified. The facts of the case were that a lesbian couple had contracted with a known man to father their daughter. This presented the court with three parents that each asserted their own parenting views. It is clear from this particular case that the notion of biological parents and psychological parents are designed to afford the developing growth in the family unit. There has been previous authorities that have tried to identify and further the growing trend in the evolution of a family unit. This has also been shown in cases that involve heterosexual couples, who have split up and started new relationships with other people, attitudes towards contact with the non-resident parent, and of course same sex relationships. In the case of same sex relationships, the court’s have been reluctant to accept that a child’s best interests are served by same sex couples. This is due to the possible stigmatism from peers, the psycho-sexual requirements of the child, and general wellbeing of the child concerned. However, the courts have also tried to hang the decisions on other factors. This was seen in the case of Re C[10]. This was where the wife’s lesbian cohabitant had a criminal record. However, it is worth noting that the court has been prepared to allow a child to remain in a lesbian household providing the parties are not ‘militant lesbians’. This again shows the changing nature in society and how the courts recognise this change. Further examples can be seen in the cases that concern gender reassignment. These cases have shown a growing trend towards realising the evolution. According to the case of Corbett v Corbett[11] a person’s biological sex is determined at birth, this includes chromosomes, gonads, and genitals. Further, it cannot be changed by medication or surgery. However, this stance was examined by the case of Rees v UK[12]. In this case Mr Rees was a female to male transsexual, and wished to change his birth certificate to reflect this change and also wished to enter into a contract of marriage with a female. Mr Rees, complained that the UK had breached it’s obligation under Articles 8 and 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. It was held that no violation had been demonstrated. It is clear from this case the original stance was followed. This in its entirety had not allowed for the social norms to be promoted. This was furthered by the case of X, Y and Z v UK[13]. In this case X was a female to male transsexual, who lived with Y. Y was artificially inseminated and gave birth to Z. The application concerned the desire for X to be registered as Z’s father. It was held that the refusal of the UK to formally recognise X as Z’s father was not in violation of Article 8. Yet again, the social norms were not promoted. However, the trend was seen to be deviated from in the case of Goodwin v UK[14]. In this case the applicant was a male to female transsexual, who wished for a declaration to be made that Articles 8 and 12 had been violated. As the applicant was legally recognised as a man, ‘he’ was still liable to pay national insurance contributions until the age of 65, whereas if ‘he’ had been legally recognised as a female, liabilities would have ceased at the age of 60. It was held that the rights enshrined had been violated. This was due to the rights that the Convention tried to uphold. This was the first authority that broke away from the original stance and afforded the growing trends towards the views of society. However, this case has in itself been deviated from by the case of Bellinger v Bellinger[15]. In this case, the applicant appealed against a ruling that her marriage to a man was null and void. It was held that the marriage contract could not be formally recognised, due to the requirements of section 11 (c) of the Matrimonial Causes Act of 1973. This statutory provision provides that a marriage is void if the parties are not male and female respectively. However, in the dissenting judgment of Thorpe LJ, the family justice system should be flexible, in accordance with liberal democratic principles, to recognise the changes in society and the individual’s right to have a private life. This is a powerful indictment of the failings of the family justice system, and Thorpe LJ has clearly identified the requirements that the law must follow the principles that basic human rights try to achieve. In conclusion, the social normalities have become increasing more accepting over the changing diversity of the family unit. The traditional unit that used to exist of a mother, a father, and 2.4 child is no longer the only way a family can exist. The law has only recently caught up with the changing thoughts of society. This can be evidenced by the allowance and recognition of transsexuals, of same sex parents, and of civil partnerships. This is due to the emergence of human rights, which afford the principles of liberal democracy. The law has an obligation to safeguard the rights of the vulnerable in society. Thus, the law must promote the changes and acceptance of social normality. Bibliography
  • Family Law, 1st Edition, by Frances Burton, published by Cavendish Publishing Limited in 2003.
  • Principles of Family Law, 17th Edition, by Stephen M. Cretney, Judith M. Masson, and Rebecca Bailey-Harris, published by Sweet & Maxwell in 2003.
  • A Practical Guide to Family Proceedings, 3rd Edition, by District Judge Robert Blomfield, Helen Brooks, and District Judge James Taylor, published by Family Law in 2005.

Footnotes

[1] [2006] EWCA Civ 372, as amended by Re G [2006] UKHL 43. [2] [1994] 18 EHRR 342. [3] [2006] EWCA Civ 372 [4] Within the meaning of section 3 of the Children Act of 1989. [5] Children and Family Court Advisory Support Service. [6] Re G (Residence: Same-Sex Partner) [2005] 2 FLR 957. [7] Under the Family Law Act of 1986. [8] Under section 8 of the Children Act of 1989. [9] [2006] 1 FCR 556. [10] [1991] Fam Law 175. [11] [1970] 2 WLR 1306 per Ormerod J. [12] [1987] 2 FLR 111. [13] [1997] 24 EHRR 143. [14] [2002] 2 FLR 487. [15] [2003] UKHL 21 overruling the decision of Bellinger v Bellinger [2001] 1 FLR 389.
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