Modern family disputes in the Family Court

The recent judgment of Mr Justice Trowell in F v J & Others [2024] EWHC 2802 (Fam) is the latest published case of a dispute arising from a planned co-parenting arrangement. The facts of this case are, sadly, not unusual for disputes which arise from such arrangements and highlights the importance of early legal advice when entering into such arrangements.

Background

The case involved a little boy of 11 months old. The child was conceived after fertility treatment at a UK clinic. The father and mother had been childhood friends and came out as gay to one another as teenagers. They had a discussion that they may have a child together as they grew up.  The court found that the father recollected that discussion as more serious than the mother. 

In 2018, the mother was in a relationship with a woman, “T”. She and T decided that they would like to have a family and they asked the father to be a sperm donor. The father declined because he wanted to be a father and not a donor. By 2020, the mother asked the father again on the basis of him being involved as a father. 

The agreement was that the mother and T would be the people named on the birth certificate, and the father signed forms to the effect that he was a known donor. It was agreed between them that he was to play a part in the life of any child born. 

The mother’s relationship with T ended in 2021 after embryos had been created but before a transfer had taken place. She continued her fertility journey and the father asked to change his status from donor to parent.  The mother agreed to this but was informed by the clinic that if the father’s status of donor to parent was changed, they would need to postpone fertility treatment for a 12-month period. The mother did not want to delay treatment and so continued the process with the father as a donor and with the mother as a single parent. 

In 2022 the mother formed a new relationship with another woman, “B”.  As their relationship became firmer there was an agreement to include B in the co-parenting arrangement between the three of them. 

The parties intended to draw up a legal agreement after a pregnancy had been achieved, and after a successful embryo transfer the parties jointly instructed a lawyer following which it became clear that they had different views and expectations.  They attended mediation and counselling in an attempt to reach agreement.

The parties rented a property together. The father was working abroad at the time and the plan was that they would all live together, implicitly that the child would live with all of them, subject to the father working abroad for some of the time. 

Disagreements emerged between the mother and B, and the father about the terms of their co-parenting. The father felt outnumbered and resented B being treated as equal when she had no biological relationship with the child and she had joined the plan late.  The mother and B felt the need to resist the father’s arguments by which he tried to assert himself and push for more than the mother was prepared to yield, and to diminish B’s role. 

In October 2023, the father instructed solicitors to prepare a co-parenting agreement which spelt out that ultimately decisions were to be made by him and the mother, albeit they would listen to B. This was unacceptable to the mother and B, who were due to marry later that month. 

In early November, the mother asked the father to move out of the jointly rented property, and he agreed to do so. In mid-November, the child was born. Some contact took place between the child and the father but difficulties between them remained.

B acquired parental responsibility as a step-parent through registering a parental responsibility agreement with the mother. The father was not informed of this at the time. 

In January 2024, the mothers paused contact. The father issued applications for a child arrangements order and a declaration of parentage (although he withdrew his declaration of parentage early on in the proceedings). 

The outcome

In this case, the court had expert evidence from a psychologist and a report from a Cafcass Guardian. 

The father initially sought permission to bring an application for a shared "lives with order" meaning, if granted, the child would live with both the mother and the father (rather than living with the mother and spending time or having contact with the father). Shared lives with orders are often used to ensure that one parent cannot marginalise the role the other parent plays. The father was instead given permission to apply for a time spent order, often still known as a contact order. 

At the final hearing, the father was seeking a time spent order providing for a progression to alternate weekends with overnight and a mid-week overnight contact and parental responsibility. 

At the final hearing, the mothers proposed the father have contact with the child on an alternate monthly basis (six times a year) but not to include overnight staying contact. The Guardian supported this position. 

During the hearing, the psychologist Dr Pettle gave evidence that she did not think that a child of this age could retain memories of contact if there was more than a gap of four weeks and gave evidence that four weeks should be the preferred amount. The Guardian changed her recommendation to support contact on an alternate monthly basis for twelve months but then to progress to monthly contact. There was an agreement between all parties to access joint therapy in the hope of rebuilding the trust between them. 

The judge accepted the Guardian’s final position of alternate monthly contact for twelve months progressing to monthly contact thereafter.  He did not order that the father have parental responsibility. The reason that more frequent or substantial arrangements were not ordered was because of a concern that the mother in particular could not cope with any more. 

What does this mean for modern family disputes?

This judgment was reported as part of the trend of the Family Court to publish more decisions in the interests of transparency.

Ultimately, in these cases, the court’s paramount consideration is the best interests of the child. Having said that, the dynamics of a multi-parent family can add a layer of complexity to an arrangement and the court will want to ensure that the child is protected from harm that be caused by being the centre of a dispute about each aspect of their parenting. In this case, and in others, the courts have placed considerable weight on the ability of the “primary carers” to cope with more substantial contact arrangements.   

It is also well established that the court will focus on the situation as it now is, rather than what might have been agreed. 

The fact that a biological father has signed donor consent forms, or is not treated as a legal parent because of the marital status of the child’s mother, will ultimately have little significance to the court in their approach to the child’s welfare. 

 F v J and Others does not set a new legal precedent but it does highlight some common pitfalls that people entering into co-parenting arrangements fall into.

Common pitfalls

Planning to co-parent a child outside of an intimate relationship brings challenges which can be unforeseen. There may be a sense of urgency for fertility reasons. This urgency to become pregnant can take priority leaving discussions about details of arrangements to be shelved until during the pregnancy. 

Terms such as “co-parenting”, “fully involved”, “parent” and “equal parenting” can mean different things to different people. One person may understand “equal parenting” to mean an equal division with the child having two homes. To another person, it may be understood to mean equal involvement in decision-making.

Another feature commonly seen in disputes of this nature is a misunderstanding of the legal position in relation to parentage. Legal parenthood and parental responsibility (and who, and how it can be obtained) is determined under various statutes. This in turn impacts who can be registered on the child’s birth certificate, as opposed to the intentions of the parties. In our experience, the discovery by a father that he cannot be named on the birth certificate, and cannot acquire parental responsibility without a court order, can be distressing and cause them to react in ways that cause the mother and any other parent to feel unsupported or marginalised.    

Early discussions, possibly involving a lawyer or mediator, but certainly before insemination is attempted are always advisable. Written agreements are not legally binding but they are still incredibly useful to ensure that all parties’ expectations and aspirations are aligned. 

If difficulties and disputes arise either during pregnancy or after the birth of the child, professional assistance from lawyers, mediators and counsellors can be invaluable. Disputes arising from these arrangements are not likely to be “bread and butter” work for most family lawyers. It is important to instruct solicitors who have experience of these cases, which often also requires a grasp of the parentage laws following artificial insemination. 

Colin Rogerson and Rebecca Latham in Mills & Reeve’s family and children team acted for the mothers in F v J and Others.

Our content explained