A gay woman and her civil partner have lost their appeal against a ruling granting joint residency to the father of their two children who were born by artificial insemination.
The women, who cannot be named for legal reasons, took the case to the Court of Appeal arguing that the boy of 10 and girl of seven needed to know which was their permanent home.
June Venters QC said that the couple had been the primary parents from birth and should have been granted a joint residency order, with the father having defined contact periods.
A county court decision that the children should live with the father for 152 days of the year had "marginalised" the woman's partner, she told the Master of the Rolls Lord Neuberger, Lord Justice Patten and Lady Justice Black.
The judges heard that the father, who has been with his partner for 25 years, met the mother after he placed an advert in Gay Times in 1999 reading: "Gay guy wants to be a Dad. White, handsome, solvent 30s, professional, in happy relationship, non-scene, has everything but kids. Looking for a similar female couple who wants to have kids. I require little involvement. I have a lot to offer."
The county court judge who heard the case said he was struck by the intensity of the dislike for the father felt by the mother and her partner, who found him domineering and controlling.
In the run-up to the appeal, the father said that he was prepared to agree to a residence order in favour of all three adults but the women did not feel this addressed the difficulties over the children.
Lady Justice Black drew the attention of all the parties to what the county court judge had said.
She stated: "He told them that they must put aside their differences and that if the adults do not manage to resolve things by communicating with each other, the children inevitably suffer, and the adults may also pay the price when the children are old enough to be aware of what has been going on. It is a great shame that that sound advice does not appear to have been heeded."
Dismissing the appeal, the judges went on to alter the county court order to the limited extent that a residence order in favour of all three adults should be substituted for that in favour of the father and mother only. This would ensure that, should the mother die, the status quo with regard to living arrangements would continue "until any issues could be sorted out in an orderly fashion by the court".