CRAIG v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a British national living in Northern Ireland. She is represented before the Court by Messrs McClure and Company, a solicitors’ firm in Belfast The applicant is a social worker working with children under five years old. She also works on a voluntary basis as a classroom assistant in a local school. She is homosexual and her sexual orientation is known to her employer and to the school where she assists. The applicant has two children aged 11 and 12. The applicant has been involved in a homosexual relationship with L since 1990. L obtained a divorce in February 1993 but the custody and care of L’s four children (born in 1978, 1980, 1984 and 1986, respectively) were the subject of High Court proceedings. In or around December 1993 L and her former husband agreed interim shared care arrangements according to which the children would spend alternative weeks with each parent. On 10 May 1994 L and her former husband settled the High Court proceedings. L’s former husband would have custody of the children and her access to them would continue on the basis of the shared care arrangement. L also agreed that she would not permit the children to come into contact with or remain in the company of the applicant or of any other person known to L to be lesbian. The High Court made an order on the same day in the terms of this agreement. As a result of difficulties surrounding the applicant’s contact with L, the matter was brought before the High Court on 7 June 1995 when L again undertook to the Court that she would comply with the order of 10 May 1994. Following another summons issued by L’s former husband, on 25 January 1996 L undertook to the High Court that she would instruct the applicant not to call at her home at any time when she had access to the children, and she undertook not to answer or open the door if the applicant called at her house during a scheduled access visit. The High Court recorded L’s undertakings in its order of the same day and dismissed the summons. Since then L lives one week at her own address with her children and the other week with the applicant. During the course of the custody proceedings, social work and psychologist reports were submitted to the High Court dealing, inter alia, with the applicant’s position in relation to L and her children. The detailed report of a child and adolescent psychiatrist, Dr Gallagher, of September 1993 concluded that research showed there was no evidence that children living with lesbian mothers were adversely affected in terms of their sexual identity, personal development, peer relationships or social adjustment. He considered that there was no evidence that L’s sexual orientation posed a threat to the children or that L’s relationship with the applicant would adversely affect the children. The evidence was that cohabitation between L and the applicant, provided that relationship was good, would have a positive effect on the children. Given the acrimonious relationship between L and her former husband, the children’s need for stability and security, the difficulties L’s husband experienced with the shared care arrangements and since L was the main care giver, it was that expert’s opinion that L should be granted custody with frequent access being given to L’s former husband. A social work report of November 1992 indicated that there was nothing to suggest that L could not provide adequate care and protection for the children. Given the parents’ acrimonious relationship and the children’s need for stability, custody was recommended in favour of L with regular access in favour of L’s husband. A further social work report of June 1993 highlighted the husband’s concern about L’s relationship with the applicant. Having considered all of the care and custody options, the social worker indicated that he was unable to assess the children’s views on their mother’s homosexuality and that there was a lack of definitive research on the possible effects on the children’s developments of being in the custody of L who was homosexual. He found it extremely difficult to make a definite recommendation, but considered that custody should be given to L, her husband’s condition as regards the children having no contact with the applicant being considered “untenable”. Dr Harbinson, a consultant psychiatrist, did not agree with Dr Gallagher’s report of September 1993. In his report of November 1993, he considered that it was difficult to dismiss the vital importance of parents as role models for their children and the stigmatisation attached in our society to homosexuality. He considered that it would not be wise to raise the issue of L’s homosexuality with the children at that stage. Dr Gallagher produced an addendum to his report in December 1993 pointing out that Dr Harbinson had done limited research on lesbian couples and children and had misinterpreted the research quoted. He repeated that it was not the sexual orientation of parents that was the issue but rather the quality of the parents’ relationship. He added that psychological studies had shown that where the mother (the main care giver) was living with her lesbian partner, the mother was psychologically more secure and stable and this was, in turn, beneficial for the children. He confirmed his recommendation that L have custody of the children, with her husband having regular access.