Edinburgh Napier University

  Article 3 of the UN Convention on the Rights of the Child provides that in ‘all actions concerning children’ the ‘best interests of the child shall be a primary consideration’. However, the paradigms of family life, and child-rearing, are constantly evolving. This paper critically analyses how disputes about the best interests of children born into what have been termed ‘non-traditional’, or ‘new’, families are being determined. Such children have been conceived with reproductive assistance and more than two adults may assert their parenthood on gestational, genetic or social grounds. Some, or indeed all, of these adults may be assuming (or may wish to assume) a substantial role in the child’s care and upbringing.

In cautioning against the imposition of ‘stereotypes from traditional family models’ in 2012, the Court of Appeal (England) observed: ‘It is generally accepted that a child gains by having two parents. It does not follow from that that the addition of a third is necessarily disadvantageous’ (A v B (Contact: Alternative Families) [2012] 1 WLR 3456, per Thorpe, LJ, at 3463-4). The expression, by contemporary lawmakers, of such sentiments is gradually becoming more common – or, at least, less uncommon – across a breadth of jurisdictions. While the primary focus of this paper is the UK, in which recent judgments have highlighted certain procedural and substantive issues arising in ‘non-traditional’ family disputes, reference will also be made to the wider international context.