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Non Biological Parent Case Law

Non Biological Parent Case Law

The following items of case law may assist LGBT non biological partners, step-fathers, and non biological fathers (who performed the role of social/psychological parent).

Whether you´re a father who finds he is not the biological parent, a step-parent or a same sex parent, depending on your past involvement with the child, commitment, and the extent of your relationship, the court may safeguard the child´s relationship with you. There are three ways in which people become a parent, as we go on to explain in the judgments below.

A point to note when reading historic case law relating to the acquisition of parental responsibility by non-biological parents is that the law changed in April 2014, and now also allows the court to grant parental responsibility to a non-biological parent when making a child arrangements order for contact. This change was introduced by the Children and Families Act 2014.

Make sure you also read our revised guide on Parenthood and Parental Responsibility which sets out how parental responsibility can currently be acquired:

The case concerned two lesbian parents. It is worth noting that at every level of judicial intervention, the Court gave its full endorsement to the crucial ´parental´ role that a non-biological parent can play in a child´s life, and that Lord Justice Thorpe made a shared residence order in the non-biological parent´s favour during those proceedings.

In the House of Lords, Baroness Hale of Richmond, while acknowledging the importance of the biological parent, goes on to discuss other ways in which parenthood can be obtained:

“37. But there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare. Adoptive parents are the most obvious example, but there are many others.”
The term psychological parent to which Hale refers originates from ´Beyond the Best Interests of the Child´ (Goldstein, Freud and Solnit) [1973]. Within that publication, a psychological parent has the following definition:

“A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child’s psychological needs for a parent, as well as the child’s physical needs.”
Please note, while the court gives guidance on when a person may be considered a psychological parent, that is different matter to obtaining legal parental responsibility for a child (although when seeking parental responsibility, the court´s recognising that you fulfil a role of psychological parent may assist in your acquiring parental responsibility legally.

Also see our guides on parental responsibility: No Link Provided

The mother and the step father began a relationship while the mother was still pregnant. The biological father had no involvement. The mother sought to relocate. The court awarded joint (shared) residence to the step father, which also gave him parental responsibility, in part to ensure his role was not marginalised in the future. The order was appealed, and the appeal rejected.

Also worth noting the further clarification of when a shared residence order might be made (and one not restricted to parenting time) and the following is quoted from this judgment:

On granting parental responsibility via shared residence orders:

´…In Re:H (Shared Residence: Parental Responsibility) [1995] 2 FLR P. 883, the Court of Appeal clearly stated that a shared residence order was an appropriate means of conferring parental responsibility upon a step father. [In] the much more recent case of R: G (Children) [2005] EWCA Civ P. 462, the Court of Appeal turned to the use of shared residence as a tool to ensure that the non-biological parent shared parental responsibility for the child concerned.
Parental Conflict not an obstacle to granting a shared residence order

´It is not the case, as has been suggested by Mrs R, for example, that conflict and parental acrimony are grounds to refuse to make an order for shared residence. In A & A (Shared Residence) [2004] 1 FLR 1195, Wall J (as he then was) made a shared residence order against a background of tremendous conflict between the parents that resulted in frequent applications to the Court.
On shared residence orders generally and psychological benefits to the parents

66. The making of a shared residence order is no longer the unusual order which once it was. Following the implementation of the Children Act 1989 and in the light of S.11(4) of that Act which provides that the Court may make residence orders in favour of more than one person, whether living in the same household or not, the making of such an order has become increasingly common. It is now recognised by the Court that a shared residence order may be regarded as appropriate where it provides legal confirmation of the factual reality of a child’s life or where, in a case where one party has the primary care of a child, it may by psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.
Three further paragraphs are particularly noteworthy when seeking arguments to support the ongoing relationship of the non biological parent and child, in the face of opposition from the biological parent, to demonstrate the court´s approach in other cases:

71. Furthermore, the Court emphasised the importance of the finding of the Judge that the respondent had been developing plans to marginalise the appellant. Thorpe LJ stated at para. [27]:
“The CAFCASS officer had expressed a clear fear that, unless a parental responsibility order was made, there was a real danger that [the appellant] would be marginalised in the children”s future. I am in no doubt at all that, on the Judge”s finding, the logical consequence was the conclusion that the children required firm measures to safeguard them from diminution in, or loss of, a vital side of family life ‐ not only their relationship with [the appellant], but also with her son. The parental responsibility order was correctly identified by the CAFCASS officer as the appropriate safeguard. The judge´s finding required a clear and strong message to the mother that she could not achieve the elimination of [the appellant], or even the reduction of [the appellant] from the other parent into some undefined family connection. It may be that the mother´s own needs and emotions drove her in that direction but that road had to be sealed off for, if not sealed off, it would be taken at a real cost to the children. I do not think that that factor was sufficiently identified by the judge.”
…and…

92. The purpose of his order was to require the mother, as biological parent, to recognise the role of Mr A as H´s social and psychological parent, in circumstances where, for the two years prior to the break-up of the marriage, she had herself engineered and recognised his role as father, only to repudiate it once it became apparent that the CAFCASS officer was recommending a joint residence order in December 2004. In that context, the assertion in the grounds of appeal that the Judge gave disproportionate weight to the wishes and ambitions of Mr A is simply a complaint that the Judge found those wishes and ambitions to be genuine and legitimate in the circumstances of the case.
…and…

85. So far as the likelihood of further strife was concerned, the Judge recognised the continuing difficulty between the parties but noted that authority did not preclude the making of a shared residence order in such a case, indeed it might support the reasoning behind such an order. The Recorder plainly considered the order desirable both an appropriate recognition of the role of Mr A and a clear message to the parties. I find no error of principle in his reasoning or approach.

While the court could not hear residence and contact applications as the child was not habitually resident in the UK and to do so would trespass upon Ireland´s jurisdiction, it did grant the non-biological mother´s application as to a declaration of family life between her and child. Jackson J reminded himself of the case law on the definition of family life: it is a matter of substance rather than form.

Jackson J, the presiding judge, refers to Re G (above):

36. …As shown by Re G (Children) [2006] UKHL 43, a court making a welfare determination has to evaluate parental contributions that can be genetic, gestational or social/psychological.

Temporary Removal from Jurisdiction Case Law

Shared Living Arrangements Case Law

Section 91.14 Case Law

Reversal of Residence Case Law

Paternity Testing Case Law

Parental Alienation and Intractable Contact Dispute Case Law

Occupation Order Case Law

Without Notice And Non Molestation Order Case Law

Non Biological Parent Case Law

Leave to Remove Case Law

Jurisdiction Case Law

Interim Contact Case Law and Practice Directions

Indirect and Suspension of Contact Case Law Menu

Internal Relocation Case Law

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