The appellant was a 'donor' father seeking a fuller relationship with and contact to his son. A ('the father') and B ('the biological mother') conceived M, a boy aged 2, via artificial insemination. M lived with the mother and C, the mother’s long-term lesbian partner ('the psychological mother').

Discussions between the adults about having a child preceded M’s conception by some years. They culminated in an agreement that the biological mother would undergo fertility treatment using the father’s sperm.

Whilst it was agreed that M would live with the mothers, no consensus was reached about the role the father would play in M’s life. The father and the mothers had significantly divergent views: the father wanted M to visit initially and then stay with him and spend holidays with him; the mothers wanted the father’s contact with M primarily to be in their company, as they wanted their child to be brought up in a two-parent lesbian nuclear family. All three believed that their respective positions were understood and agreed by the others.

The father married the biological mother to mollify her family, who held Orthodox religious views. (They struggled to accept the biological mother’s sexuality or her relationship with the psychological mother.) So, the father automatically acquired parental responsibility for M when he was born.

Relations between the adults deteriorated after M’s birth as they each sought to manage the relationship between M and the father in the way they each believed had been accepted. An impasse was reached. The father applied for his contact to be defined. The mothers cross-applied for joint residence and specific issue orders, the latter designed to restrict the manner in which the father exercised parental responsibility.

At an interim hearing, the court ordered fortnightly visiting contact by M to the father. At the trial of the applications, the father contended for that visiting contact to develop to a regime of staying contact in the foreseeable future. The mothers argued that the pattern of contact ought to remain static until M was a young teenager, and could express a view himself about his relationship with the father.

The trial judge made a joint residence order to the mothers and a defined contact order to the father. He slightly extended the duration of the contact visits, but declined to make an order providing for it to be of increasing duration, or to move at some point to staying contact. He held that a regime of regular and frequent contact would put the child’s emotional needs at risk, and possibly be harmful. The benefits of developing M’s relationship with the father to something approaching the divorced parent-type model were absent. Any potential benefit to the child would be outweighed by the disruption to the relationship between the mothers. He declined to make an order restricting the exercise of the father’s parental responsibility. Whilst not prohibiting a variation application, he observed that the basis for refusing staying contact was unlikely to change in the near future.

The father appealed.

The central issue was whether the trial judge had had proper regard for M’s welfare, and the benefit to him from a relationship with the father developed through increased contact. Had he focused too much on adult issues, and the mothers’ archetype of a two-parent lesbian nuclear family? Had he over-relied, in seeking to derive guidance on how to decide what was best for a child of an alternative family, on previous decisions and academic material? Had he identified any rational basis for limiting contact to visits indefinitely, given that received wisdom points to children usually benefitting from steady increases in frequency and duration of contact with parents, culminating in overnight stays and holidays?

The appeal was allowed.

(1) In reaching his decision, the judge had extracted what he identified as a general rule from the line of authority in disputes between two lesbian mothers and an identified father. This was fundamentally wrong. It was similarly wrong to look to general academic material for such a general rule. This is an area of family law in which generalised guidance is not possible. These cases were fact specific. The only principle to be applied was the paramountcy of the child’s welfare (see [23]-[24], [38]-[39] of the judgment).

(2) Having (wrongly) identified that general rule, the judge erred in applying it. There were many facets of M’s life which were not brought into the balance as a consequence, some of which suggested that the father offered M a relationship of considerable value (see [24]).

(3) It was generally accepted that a child gained from having two parents; it did not automatically follow that the addition of a third was disadvantageous (see [24]).

(4) The suggestion by the mothers that great weight ought to be attached to their autonomy as primary carers, and their plans for the future, should be approached with caution. Human emotions are powerful and inconstant. What adults looked forward to before engaging in the reality of conception, birth and the first experience of parenting might ultimately prove to be an illusion or fantasy. The mothers’ desire to create a two-parent lesbian nuclear family may ultimately prove to be essentially selfish and weigh insufficiently M’s welfare and developing rights. Pre-conception intentions were relevant but neither could nor should be determinative (see [27], [44]).

(5) The nomenclature used in recent authorities - concepts of primary and secondary parents - was not to be endorsed. It carried the danger of demeaning the person described as 'secondary parent', who may have an important role. It was preferable to rank parents in the context of care: here, the mothers as primary carers, and the father at the threshold of providing secondary care. The use of the word donor in cases such as this might also merit reconsideration. The father was not an anonymous donor, and the term might misleadingly convey the impression of the father giving his child away (see [28]-[31], [48]).

(6) The judge ought to have concluded that the relationship between M and the father, and whether that ought to be permitted to thrive and develop, should be considered in stages and in light of accumulating evidence. The judge was wrong to steer a course for the foreseeable future for M as definitively as he did (see [32]).

The matter was therefore remitted to a Family Division judge, to assess the immediate future for M informed by the immediate past. That judge should consider whether M might be represented separately from his parents, and whether expert or welfare reports should be commissioned to assist the court.

Alex Verdan QC leading Charles Hale (instructed by Kingsley Napley LLP) for the appellant; Charles Howard QC leading Madeleine Reardon (instructed by Hughes Fowler Carruthers Ltd) for the respondents.

Duncan Ranton, is a solicitor in the Family Law Team at Kingsley Napley LLP and a specialist in children related cases