It is a very modern custody battle.
A gay man who donated sperm to his lesbian ex-wife is demanding overnight and holiday contact with her two-year-old son.
She and her female partner are fighting his demands, saying he has ‘betrayed’ a ‘pact’ made before the child was conceived under which the father would have only ‘limited’ parental rights.
The three parents – who are highly-paid professionals living in central London – cannot be named to protect the boy’s identity.
The father, who attended his son’s birth and has five hours of contact a fortnight, insists he was always more than a sperm donor and wants to play a full paternal role in the life of his only child.
His lawyer Alex Verdan QC told the Appeal Court that he had been ‘utterly consistent’ in this desire and feels immense ‘pleasure and joy’ when he interacts with his son.
But the boy’s mother insists she made a ‘clearly agreed’ pact with the father in a restaurant before he was conceived, which stated that she and her lover would fill the role of ‘primary parents’ within a ‘two-parent, nuclear family’.
The father was formerly in a ‘marriage of convenience’ with the mother, although they are now divorced, and three Appeal Court judges are being asked to rule on whether the boy would be better off with ‘three parents and two homes’.
Charles Howard QC, for the mother and her partner, said they had been left with a sense of ‘bitterness and betrayal’.
Had they known the position the father would take, they would have opted for an anonymous sperm donor.
He added: ‘Notwithstanding their sexuality and that they acknowledge to that extent that they are an alternative family, the mother and her partner hold very traditional views of family life and would not have chosen to bring a child into anything other than an intact, two-parent, family.
'The ideal upbringing for a child is a stable home in which the parents love each other and had together chosen to bring a child into the world. This is the upbringing which the mother and her partner always wanted to create for this little boy.
They were always of the view that their son’s best interests militated against him spending very much time away from them or from his home.
'The intention was always that the father, who was at one time their close friend, would generally see the boy in their company by sharing in activities and family events.
The breakdown of the friendship has had the result that the boy is spending far more time away from his primary parents than they had anticipated.
'This is something which they have had to accept but it represents a significant departure from their initial plans for their son’s upbringing.
'To this particular couple, the concept of “three parents, two homes”, repeated so often by the father, is very alien and it has never been something they would consider.
'They cannot conceive of their child being shuttled, physically but more significantly emotionally, between two homes and it is something that they believe will harm their son and cause significant emotional damage.’
Urging the court to focus on the boy’s best interests, the father’s lawyer Mr Verdan said the current level of contact between them had ‘frozen’ their relationship, which will ‘wither on the vine’.
He said the father has no desire to undermine the role of the mother and her partner as the boy’s primary carers, but wants sufficient contact with the boy to enable a ‘developing relationship’ with his only son.
Last week the Daily Mail revealed how the rights of fathers to see their children are to be strengthened by a radical change to the 1989 Children Act.
It will aim to remove any ‘legal bias’ in favour of mothers and ensure children have a ‘full and continuing relationship’ with both parents where there are no welfare issues in the case of family breakdown.
The three judges reserved their decision to an unspecified date.