Joint residence orders
Seeking a joint residence order was an issue raised in all four lesbian couples’ accounts. In Jane’s and Helen’s case, the reason for seeking a joint residence order was explained with reference to co-mother Helen’s lack of legal status. At the time of the interview, they had completed an affadavit but not yet begun formal legal proceedings. Earlier in the interview, Jane had noted that, as the birth mother, she had parental responsibility automatically, whereas for Helen she states:
It [joint residence order] does need to be done, and I think it’s more of an issue for you isn’t it [to Helen] and also for [daughter] to know that legally we are both her parents. That does have a weight and standing actually for a child to know that it’s not just mummy Helen who’s not really, at the end of the day, can’t sign anything down at the doctor’s surgery to say she can have medication or whatever. It’s important for [daughter] to know that mummy Helen can do all that, as can mummy Jane you know.
Jane discusses the importance of Helen having parental responsibility in terms of both the symbolic significance and the practical implications this would have for Helen and their daughter. Jane clearly expresses a desire that their daughter would know that she and Helen are legally her parents, suggesting that legal discourse is
a powerful normalising factor in signifying kinship relations within their family, including the emotional and psychological security that might be provided by knowledge of that relationship. But again, in Jane’s account, legal recognition is discussed by reference to the gender-neutral term ‘parents’ rather than in relation to the possible recognition of two ‘mothers’. In contrast, when discussing the significance of the legal recognition of Helen’s parental role from their daughter’s perspective, it is interesting to note the shift to the use of the terms ‘mummy Jane’ and ‘mummy Helen’. This subtle shift is significant, as it points concurrently to the singularity of meaning of kinship terms (ie both could not be ‘mum’) and their plasticity, inasmuch as there is the potential for both ‘mummy Jane’ and ‘mummy Helen’ to be named as such within one family, even when legal recognition is articulated in the only language in which the law can so far cope with two mothers: as gender-neutral parents.
In terms of the practical significance, parental responsibility confers a range of rights and responsibilities for the child, yet Jane highlights future interactions with the medical profession. On the one hand, this indicates Jane’s awareness of the absence of legal rights accorded to Helen. On the other hand, this suggests that legal status is of particular significance in dealing with professional authoritative bodies or persons including medical practitioners, as the issue of parental responsibility would be central in determining who may and who cannot provide consent for the child’s (non-emergency) medical treatment. Hence, the absence of legal status accorded to Helen, the co-mother, is clearly problematic when faced with the practical considerations of caring for a child. Furthermore, one cannot assume that an application for a joint residence order will necessarily be successful. Andrea and Louise, for example, were unsuccessful in their application for a joint residence order in 1998.83 Therefore, while provisions to confer parental responsibility on co-mothers exist, a joint residence order is neither an automatic nor a guaranteed route to attaining formal legal status in relation to one’s donor-conceived child.
More recently, however, there have been statutory84 and judicial shifts towards recognising same-sex parenting.85 In the recent case of Re G (children) (shared residence order: parental responsibility),86 on appeal a joint residence order was granted to a lesbian co-mother following the breakdown of her relationship with the donor-conceived children’s mother. In his leading judgment in the Court of Appeal, Thorpe LJ made clear that he would not countenance the marginalisation of the co-mother in the children’s lives in the future. He stated:
I am in no doubt at all that. . . the children required firm measures to safeguard them from the diminution in or loss of a vital side of family life. . . 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 Miss W [co-mother], or even the reduction of Miss W from the other parent in some undefined family connection.      
Lord Justice Thorpe does not address Miss W as a parent per se at any point in the judgment, referring only to the law as it relates to ‘absent parents’ generically,88 or, as above, to the mother as the ‘other parent’.89 Nevertheless, his comments clearly indicate a firm recognition of the co-mother’s parental role in the children’s lives. It is hoped that with the Civil Partnership Act 2004 now in force, the emergent judicial trend towards recognising same-sex partnerships (including parenting arrangements) will continue in this vein.
In addition, as noted above, s 4A(1) Children Act 1989, in force since 30 December 2005, now enables co-mothers to apply for parental responsibility where they have entered into a civil partnership with the child’s mother. While this provision extends the remit of s 4 and facilitates parental responsibility for co-mothers in the absence of a joint residence order, it nevertheless ensures that only those who adhere to the normative lesbian family, as legislated by the Civil Partnership Act 2004, can seek and be accorded this status. Thus, as Davina Cooper and Didi Herman warned in 1995: ‘As some lesbians and gay men gain admittance into the status quo, familial ideology may be strengthened and others may be further marginalized.’ Therefore, those women who cannot or will not align themselves according to the norm of the ‘good’ lesbian co-mother will continue to be excluded under these provisions. For these reasons, I suggest that legislative changes be introduced, as discussed further below.
Part of me thinks that in the event of my death nobody would contest my partner’s
right to be, you know, the parent of the child.
While all four lesbian couples interviewed mentioned the possible use of guardianship, with the exception of Andrea and Louise, none had put this in place. A child’s legal mother can appoint the co-mother to be a guardian for the child in the event of her death. With guardianship, one acquires parental responsibility, which Chris Barton and Gillian Douglas point out is ‘the closest a parent can come to a unilateral transfer of parental responsibility’. In the context of lesbian couples who conceive through the use of licensed donor insemination, guardianship would not take effect unless and until the legal mother dies, as there is no legal father. Therefore, in terms of providing legal status in relation to the donor – conceived child, it is limited to providing possible future rights and responsibilities. Furthermore, s 6(1)—(4) Children Act 1989 provides circumstances in which guardianship can be revoked. In addition, a court order can terminate guardianship. Therefore, while a guardianship provision may provide solace for some lesbian couples with regard to the co-mothers’ legal standing, it is limited. Unlike parental status, it is not automatic; it is not ‘for life’; nor does it render the donor-conceived child a member of the guardian’s family. Nevertheless, it remains the only legal provision which the child’s legal mother can make in favour of the co-mother without any external (judicial or other) scrutiny. However, I would suggest that this need not be so.