The parties to this appeal are CG, CW and their children, A and B represented by their guardian Mr M.

By way of short introduction CG and CW cohabited in a lesbian relationship from 1995 until 2002. They wanted a family. A was conceived by CG as a result of anonymous donor insemination and born on the 2^nd February 1999. Sperm was reserved by the clinic to enable the couple to have a second child. B was born on the 26^th June 2001 and A and B are full sisters.

In 2002 their relationship broke down and CG initially moved with the children to an adjoining property. That arrangement terminated when CG found a new lesbian partner who lived in Leicester. She moved with the two children to share her new partner’s home. That relationship endures and the couple have registered their civil partnership.

CW has also found a new partner and they are contemplating the registration of their civil partnership.

To complete the family story CW has a seventeen year-old son, C. There is a close bond between C and the two young girls.

More detailed account of the background is unnecessary since this case was the subject of a prior judgment of the Court of Appeal given on 6^th April 2005 and reported at [2006] 1 FCR 436. The appeal was brought by CW against the judgment of Her Honour Judge Hughes given in the Telford County Court in November 2004. The judge had refused CW’s application for a shared residence order, and with it parental responsibility, but had imposed a condition preventing CG from relocating to Cornwall. Although this court did not interfere with the practical arrangements ordained by Judge Hughes, CW’s appeal was allowed, fortifying her legal status in relation to A and B. The history, and the situation as it was last April, is sufficiently recorded in my previous judgment. Accordingly I now focus on the events of the last eleven months.

CG is recorded as having dismissed the order of this court as “an appalling decision made in an afternoon”.

On the 6^th May her solicitors wrote to CW’s solicitors asking for consent for the move to Cornwall. The request was inevitably refused. The relative proximity of the children supported the shared residence order and the underlying arrangements.

Nevertheless in May CG and her partner put the Leicester house on the market. On the 11^th of May CG registered A and B at school in Cornwall. She and her partner took steps to buy an alternative property in the vicinity.

A and B had their summer holiday with CW between 14^th and 28^th August. During that fortnight CG and her partner completed the sale of the house in Leicester and the purchase of a house in Cornwall. That was achieved by the 19^th August and enabled their removal on the 20^th. This, of course, was a flagrant breach of the court’s control of the arrangements for the children and an elaborate deception of CW. I infer that it was also a deception of CG’s solicitors, for on the 18^th August they wrote to announce that their client would be issuing an application for permission to relocate to Cornwall. They added “it will be our intention to issue proceedings at the Leicester County Court as the children are now residing in this area and will therefore be more readily available for meeting with a local CAFCASS officer.”

In order to maintain the deception CG returned to Leicester on the 28^th August in order to receive A and B at the regular handover point in Leicester. A and B were then driven through the night to Cornwall. The deception only emerged when CW discovered that the girls had not attended at the Leicester school on 31^st August, the first day of the Michaelmas term. An immediate query to CG’s solicitors was promptly answered “she has moved from the Leicester area to Cornwall …our client acknowledges that her actions place her in contravention of Order of the court but instructs us that the situation in Leicester was becoming unbearable and therefore impacting on the children. She was forced to make the decision that she did but did it in the interests of the children.”

This apologia is hardly plausible. At the subsequent trial in the Family Division before Bracewell J, whose judgment we now review, the children’s guardian made this telling appraisal: -

CW still did not know where the girls were to be found and on the 6^th September applied for orders under Section 33 of the Family Law Act 1986. Judge Hughes made the orders sought, proceedings were transferred to the High Court and A and B were joined as parties.

Two applications were then issued. On the 14^th September CG issued an application for the removal of the restriction imposed by Judge Hughes and for the reduction of CW’s contact. On the 22^nd September CW issued an application for “a change in the arrangements of where the children are to reside under the current shared residence order…the applicant proposes that the shared residence order remain in place but the applicant becomes the children’s primary carer.”

Directions were given in the Family Division to culminate in a three day trial of the cross-applications commencing 8^th February 2006. These orders also regulated contact between CW and the girls in the interim.

I would observe that these applications played for high stakes. CG sought the validation of her conduct subsequently described by the guardian in a later passage of his evidence as “an incredibly stupid and damaging thing to do to those children.” She also sought a reduction in CW’s contact. There was no hint of a readiness to return to the Midlands for the sake of the children. On the other side CW did not seek a peremptory order for the return of the children to the Midlands: she sought to take over as primary carer.

The trial before Bracewell J was fought on those battle lines. Mr Stephen Cobb QC, who appeared for CW below, confirms that none of the parties sought the outcome that would have returned the children to the Midlands in the care of CG and her partner, MG. (The evidence before Bracewell J established that since the move to Cornwall CG had been the working partner and MG the home carer).

Bracewell J heard evidence over three days, the four adults first and then the guardian. At the end of the second day she made a significant request for submissions on whether and how she might depart from the recommendation in the guardian’s written report of 16^th January 2006, the essence of which was that there should be no change of residence and that contact should be reinstated to the level set by Judge Hughes.

If this was a straw in the wind, a clearer signal came from the guardian’s oral evidence. He had been requested to listen carefully to the oral evidence and to reassess his written recommendation. At the outset of his examination in chief he was asked for his assessment of the oral evidence of CG and MG. This was his answer: -

He was then asked for his opinion on the oral evidence of CW and her partner, LP. Again I set out his response: -

Mr M’s counsel then asked what effect these assessments had upon his recommendation. He gave this important response: -

One consequence of the guardian’s evidence was the production on Monday 13^th February of typed statements composed by CG and MG on the previous day. These statements expressed contrition and pleaded for leniency, asking that any punishment should be visited on them and not upon the children.

At the outset CG’s counsel, Mr Moat informed the judge of the development and she offered him the opportunity of either recalling CG and MG or simply putting in their statements. Mr Moat chose the second course. That decision was criticised in the appellant’s fourth ground for appeal. I deal with it straight away. Although not abandoned by Mr Peter Jackson QC, who has argued this appeal most ably for CG, it was hardly pressed. He sought to suggest that Mr Moat should have insisted on further evidence from CG and MG. As my lord, Laws LJ, observed during argument, Mr Moat may have had very good reasons for electing not to do so, a decision that was no doubt taken on instructions.

Submissions were completed by the middle of the day when the judge adjourned to consider her judgment.

In her judgment delivered two days later on the 15^th the judge explained her reasons for rejecting the revised recommendation of the guardian and for granting CW’s application for primary care.

Following that reverse CG instructed fresh solicitors who in turn instructed Mr Jackson. He applied to this court for permission and for a stay. Following written exchanges between counsel for CG and CW and the court, Wall LJ granted the stay on the basis that there would be an oral hearing on the 14^th March on notice with appeal to follow if permission granted. Wall LJ identified in Mr Jackson’s first ground of appeal a novel point of some general importance that required consideration. On the 14^th March we went straight to the appeal hearing submissions from Mr Jackson for CG, Miss Cook for the guardian and Mr Cobb for CW.

Mr Jackson relied on two grounds of appeal as follows: -

In support of the first ground Mr Jackson submitted that a clear principle emerged from the decisions of the House of Lords in J v C [1970] AC 668 and Re: KD [1988] AC 806. In drawing this first ground of appeal he had particularly relied upon the passage in the speech of Lord Oliver of Aylmerton at 824: -

Mr Jackson also cited subsequent cases applying the identified principle, namely Re: K [1991] WLR 431: Re: H [1991] 2 FLR 109: Re: W [1993] 2 FLR 625 and Re: D [1999] 1 FLR 134.

The essence of Mr Jackson’s simple submission was that these authorities demonstrated the consistent application of the principle that the natural bond and relationship between parent and child is a factor of great importance in any welfare determination. A and B have only two available blood relatives, namely CG and each other. In law CG is their only parent, she being their mother by virtue of Section 27(1) of the Human Fertilisation and Embryology Act 1990.

He submitted that this unique biological and legal connection was a dominating factor in the welfare balancing exercise. It was not open to the judge to grant CW’s application since there were no compelling factors requiring the displacement of the children’s right to be brought up by their mother. The judge had ignored this primary consideration.

The guardian’s position in this appeal was not straightforward. He had not himself filed a notice of appeal and would not have done so had CG accepted the judge’s decision. He supported the submission that the judge had given insufficient weight to the biological connection as well as the submission that the judge had not properly conducted the survey of the welfare checklist required by Section 1(3) of the Children Act 1989. However he specifically disassociated himself from any suggestion that the judge had insufficiently explained her reasons for departing from his recommendation. In argument my lord, Laws LJ suggested that there appeared to be some tension, if not inconsistency in the guardian’s position. That perhaps prompted Mr Jackson to submit in reply that if the guardian wished to support his criticism of the judge’s survey of the welfare checklist he could not abstain from criticism of the judge’s reasons for rejecting his recommendations. However that may be the reality is that Miss Cook appeared for the guardian and supported Mr Jackson’s submissions only on grounds 1 and 2. On each ground she simply adopted his arguments without further elaboration.

Mr Cobb in his response accepted that the biological link between a child and an adult was important but that the principle asserted by Mr Jackson had no relevance in a dispute between a same sex couple who were in reality, if not in law, both parents to the children and were so regarded by the children.

In support of his second ground Mr Jackson submitted that there were glaring omissions from the checklist survey. The judge had not specifically considered: -

The children’s wishes and feelings.

Their strong attachment to CG.

The children’s excellent development whilst in CG’s care.

The traumatic effect of moving the children from their mother, the consistent long term carer, coupled with the long term effect of such a switch. How, he asked, would they make sense of the fact that they had been deprived of upbringing by their natural mother?

In his allied criticism of the judge’s reasons for rejecting the guardian’s recommendation he submitted that the judge had had no regard to the effect of a stark change of all their circumstances. The judge had overemphasised the mother’s misconduct and ignored all the positive achievements that went to mother’s credit as a parent. The judge had ignored the guardian’s reports of a happy family in Cornwall, thriving in a secure environment, the children progressing steadily at school. The decisive crux as identified by the judge was simply the wrong crux.

In his response Mr Cobb emphasised that the judge had not started with a clean sheet. She had built on the foundations laid by the judgment of Judge Hughes in the Telford court and then my earlier judgment, which so strongly emphasised the court’s responsibility to safeguard the relationship between the girls and CW. The judge had rightly identified the decisive crux. This was not a case in which the mother had been found guilty of a single instance of an impulsive decision causing harm to the children. This was a case in which a pattern of headstrong selfish and harmful decisions had been clearly proved. He instanced: -

CG’s move to Leicester which had resulted in the children living in an unsalubrious area and attending a school in ‘special measures’.

CG’s frustration of the telephone call contact that had been ordered by Judge Hughes.

CG’s lack of cooperation over the Easter holidays in 2005.

CG’s irresponsible complaints that C had hurt A during a contact visit. When the complaint was rejected by Social Services she had promptly renewed it to the police.

The extent to which CG had drawn the children into sharing her attitudes by creating an atmosphere in her home that inhibited the girls from spontaneous communication when with CW.

There are many reasons why I reject Mr Jackson’s endeavour to elevate a principle of general application and to assert that the judge misdirected herself in ignoring it.

It might be enough to say that no reliance was placed on this consideration at the trial either by counsel for the mother or counsel for the guardian. However in view of the fact that our decision may affect the lives of the girls for years to come and in view of the fact that we have had the advantage of very full argument, profounder response is required.

First it is to be noted that in all the cases upon which Mr Jackson relied the battle was between biological parent or parents and some other contender for care. In J v C the dispute was between parents and foster parents. In Re: KD the dispute was between mother and local authority. In Re: K the issue resulted from the death of the mother and the resulting dispute between father and mother’s half-sister, who had stepped into the breach. In Re: H the dispute was between maternal grandparents and father. Again in Re: W the court considered rival claims of father and grandparents. In Re: D, again a public law case, the court considered a care plan for grandparents against a care plan for mother. Thus the principle has been limited in its application to cases in which the dispute is between a parent and a non-parent. Where the dispute is between two biological parents it is obvious that the principle cannot be applied. I would also strongly doubt the application of such a principle in a heterosexual union where one parent is biological and the other not.

I am unable to accept that any general proposition drawn from the earlier cases can legitimately be extended. There is the obvious point that the speeches in the House of Lords cases were given in an earlier age and in a different context. As Mr Cobb reminded us judicial attitudes to homosexual parenting were very different in that earlier age. He instanced judgments in the cases of Re: P (A Minor)(Custody) [1983] 4 FLR 401 and C v C (A Minor) (Custody: Appeal) [1991] 1 FLR 223.

To further illustrate my doubt take the heterosexual couple whose desire for a family has been frustrated by the wife’s infertility. They opt for IVF treatment with donated eggs. The eggs are fertilised by the husband’s sperm. Should the relationship founder some years after the birth of the child or children, it would seem to me of little moment if the father in any ensuing dispute were to assert some enhanced position resulting from the biological connection.

Again, in the case of the male homosexual couple who enter into a surrogacy agreement in order to parent, I do not consider that a decisive distinction is to be drawn subsequently on the basis that one of the contenders for care supplied the sperm. I also instance the known example of a lesbian couple where in the use of IVF treatment, the eggs of one are implanted in the womb of the other.

These instances simply demonstrate that we have moved into a world where norms that seemed safe twenty or more years ago no longer run.

I pose again a question which I raised in judgment in the case of Re: H [2002] 3 FCR 277, a case cited by Mr Jackson. The question is: who is the natural parent? In the line of authorities relied upon by Mr Jackson all the judges spoke of the biological parent as the natural parent, but in the eyes of the child the natural parent may be a non-biological parent who, by virtue of long settled care, has become the child’s psychological parent. That consideration is obviously pertinent to any resolution of the competing claims of same sex parents. As in the present case the family may be created by mutual agreement and with much careful planning. Both partners seek the experience of child-bearing and child-rearing in one capacity or another. Where, as here, the care of the newborn, and then the developing baby, is broadly shared the children will not distinguish between one woman and the other on the grounds of biological relationship. Depending on circumstances the psychological attachment may be to each more or less equally or more to the biological parent or more to the non-biological parent. As I said in my judgment in Re: H: -

In the context of same-sex relationships we were referred to the recent decision of Black J in the case of B and A and C and D handed down on 12 January 2006. The judge had the advantage of a report from Dr Claire Sturge, whose report written in conjunction with Dr Glaser proved of such value in Re: L [2001] Fam 260 the appeals considering the inter-relationship between contact and domestic violence. In the course of her report in B and A Dr Sturge emphasised the deficiencies of our language to meet the societal and legislative shifts that permit and embrace much more diverse family norms. In paragraph 120 of her report, cited by the judge, she wrote this of the child in the case: -

I note that section 246 of the Civil Partnership Act 2004 seeks to solve linguistic difficulties by giving the non-biological same-sex partner the status of step-parent. That may serve a legal purpose but it does not help with many of the problems identified by Dr Sturge nor with the nature of the relationships that will in practice develop between individual children and individual parents in same-sex relationships. I also note that the Human Fertilisation and Embryology Act 1990 has yet to be reformed in light of the Civil Partnership Act 2004 and that a consultation on possible reform is underway.

In paragraph 89 of her judgment, in deciding whether or not to make a parental responsibility order in favour of the child’s father Black J said : -

That Black J had careful regard to other factors clearly emerges from what she went on to say in paragraph 93 of her judgment : -

I conclude my consideration of this topic by citing two paragraphs from an addition to Mr Jackson’s skeleton argument on the first ground: -

I would accept and adopt the propositions in the above paragraphs but reject his submission that from those two propositions can be drawn the principle for which he primarily contends in his first ground of appeal.

I can deal with Mr Jackson’s second ground more shortly. The submission that a judge of the seniority and experience of Bracewell J failed to adhere to the welfare checklist would indeed be hard to make good particularly when she twice in the course of judgment stated that she had applied it. Nor can I begin to accept Mr Jackson’s submission that the judge wrongly identified the decisive crux. Its development can be traced through the oral evidence of Mr M. Relatively early in his evidence there is the following exchange: -

The point was inevitably pursued by Mr Cobb in his questioning of Mr M. In particular it is worth citing the following exchange:-

That evidence in my judgment fully justified the following important passage in Bracewell J’s judgment: -

The judge went on to state that she had reached a different conclusion from the Guardian, stating ten reasons for so doing. In order to support the judge and to explain my rejection of Mr Jackson’s criticism I need only set out her first stated reason: -

For all those reasons I would formally grant permission but dismiss the resulting appeal.

I only add that Mr M’s contribution to the resolution of this difficult case has been exceptional. He has given a great deal of time to the case not only in his locality, which is of course also the locality of CG’s home but also in the locality of CW’s home. To both his written report and to his oral evidence he has brought very high professional standards. I also acknowledge the great assistance that this court has received from the submissions of Mr Jackson and Mr Cobb.

For all the reasons given in the judgment of Thorpe LJ I agree that permission to appeal should be granted in this case and the appeal be dismissed.

For the reasons given by Thorpe LJ, I too agree that this appeal must be dismissed. I do so with a degree of hesitation. I am very concerned at the prospect of removing these children from the primary care of their only identifiable biological parent who has been their primary carer for most of their young lives and in whose care they appear to be happy and thriving. She is both a biological parent and a “psychological” 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.

Having said that, this was on any view a finely balanced decision. I have absolutely no doubt that Bracewell J, one of the most experienced judges in this field, had uppermost in her mind each of the matters upon which Mr Jackson has placed reliance and in particular the check list in section 1 of the Children Act 1989. She said so in terms. She saw and heard the witnesses. She considered all the relevant material and she provided full and careful reasons for her decision. In those circumstances, it would be entirely inappropriate for this court to step in and change the result.

I too am indebted to leading counsel for the clarity and eloquence of their submissions.