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Sisters returned to biological mother in lesbians' court battle
· Law lords say context
of case distracted judges
Two sisters taken away from their biological mother and handed over to her former lesbian partner by court order must be given back, five law lords ruled yesterday.
In a judgment setting out the principles to be applied in tug-of-love battles over children, the judges in Britain's top court set aside high court and appeal court rulings, which they said had failed to give enough weight to the important tie between children and a biological parent.
"A child should not be removed from the primary care of his or her biological parents without compelling reason," said Lord Nicholls. "Mothers are special," said Lord Scott. He could not accept that the circumstances of the case "came even close" to justifying a move from the girls' natural mother as primary carer.
Lady Hale said the issues and the legal principles which applied were the same for same-sex as for heterosexual couples. The lower courts had been "distracted" by the unusual context of the case and had departed from the correct principles.
The two women, who lived together in Shropshire from 1995 to 2002, split up after the non-biological "mother" began a relationship with a new partner.
Both women, who have been battling over the girls for three years, now have new partners and all the parties are identified by initials to protect the children.
Their mother, CG, had attempted to reduce the part her ex-partner, CW, played in the children's lives. She moved to Cornwall without telling anyone in defiance of a court order that she should continue to live in Leicester, where she had moved from Shropshire.
But before the court decided to move the children, now aged seven and five, CG had been complying with an order allowing them to spend frequent weekends with CW. The children were said to be thriving in both homes.
Lady Hale said CG, a teacher, had "behaved very badly" but subsequently complied with the order.
"Had this been the usual case of a similar dispute between mother and father, I find it impossible to believe that a court would have contemplated changing the children's primary home and schooling while contact was continuing in accordance with the court's order," she added.
The ruling means a further upheaval for the girls, who moved from their mother's home in Cornwall at Easter and will now have to make the reverse move. Lady Hale ruled that CW should have the children for the same amount of time that CG had them when their primary home was with CW. She added: "I am sad to see these two women, who deliberately brought these children into the world for them to share, and who both love and want the best for them, locking themselves into the same sorts of battles that, sadly, we so often see between mothers and fathers."
Sarah Clarke, of Bindman & Partners, CW's solicitor, said the decision was "extremely sad" for her client, who had "shown the children the same love, care and commitment as any parent". She said the ruling may cast doubt on the understanding that social attitudes had changed sufficiently to allow same-sex parents to assume they would be treated equally in any dispute before the courts.
Andrew Greensmith, chairman of the solicitors' family law group Resolution, said stepfathers who have formally adopted their new wife's children from an earlier relationship might not be treated equally with their mother if the marriage later broke down as a result of the ruling.
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