Alfred McConnell v The Registrar General for England and Wales

JurisdictionEngland & Wales
JudgeThe Lord Burnett of Maldon CJ,Lord Justice Singh,Lady Justice King
Judgment Date29 April 2020
Neutral Citation[2020] EWCA Civ 559
Date29 April 2020
Docket NumberCase Nos: C1/2019/2730 C1/2019/2767
CourtCourt of Appeal (Civil Division)

The Queen (on the application of

Between:
(1) Alfred McConnell
(2) YY (by his litigation friend Claire Brooks))
Appellants
and
The Registrar General for England and Wales
Respondent

and

(1) Secretary of State for Heath and Social Care
(2) Minister for Women and Equalities
(3) Secretary of State for the Home Department
Interested Parties

and

The Aire Centre
Intervener

[2020] EWCA Civ 559

Before:

THE RT HON THE Lord Burnett of Maldon

LORD JUSTICE CHIEF JUSTICE OF ENGLAND AND WALES

THE RT HON Lady Justice King

and

THE RT HON Lord Justice Singh

Case Nos: C1/2019/2730 C1/2019/2767

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION AND ADMINISTRATIVE COURT

Sir Andrew McFarlane P

[2019] EWHC 2384 (Fam)

Royal Courts of Justice

Strand, London, WC2A 2LL

Ms Hannah Markham QC and Ms Miriam Carrion Benitez (instructed by Laytons LLP) for the First Appellant

Mr Michael Mylonas QC, Ms Susanna Rickard and Ms Marisa Allman (instructed by Cambridge Family Law Practice) for the Second Appellant

Mr Ben Jaffey QC and Ms Sarah Hannett (instructed by the Government Legal Department) for the Respondent and Interested Parties

Ms Samantha Broadfoot QC and Mr Andrew Powell (instructed by Pennington Manches Cooper LLP) for the Intervener

Hearing dates: 4 and 5 March 2020

Approved Judgment

Lord Justice Singh

The Lord Burnett of Maldon CJ, Lady Justice King and

Introduction

1

The central question on this appeal is whether the First Appellant, Alfred McConnell (whose name was at one time anonymised to TT), a transgender man and holder of a gender recognition certificate, is entitled to be registered as the “father”, or otherwise “parent” or “gestational parent”, on the birth certificate of his son, YY, to whom he gave birth. YY is the Second Appellant. An anonymity order remains in place in relation to YY.

2

The Respondent, who is responsible for maintaining the register of births and deaths, decided that Mr McConnell had to be registered on the birth certificate as YY's “mother”. Mr McConnell applied for judicial review of that decision, which was refused on 25 September 2019 by the President of the Family Division, sitting in the Administrative Court.

3

In addition, an application was made on behalf of YY for a declaration of parentage under section 55A of the Family Law Act 1986. On that application the President, sitting in the Family Court, made a declaration that Mr McConnell is YY's mother and accordingly has parental responsibility for him for that reason by virtue of section 2(2) of the Children Act 1989. This declaration followed inevitably from the reasoning of the President in refusing the claim for judicial review.

4

The President granted permission to appeal to this Court against both orders generally.

Factual background

5

About a decade ago, Mr McConnell, who had been registered as female at birth and who was then aged 22 years, transitioned to live in the male gender. He began medical transition with testosterone therapy in 2013. He then, in 2014, underwent a double mastectomy. His passport and NHS records were amended to show his gender as male.

6

In September 2016, Mr McConnell, under medical guidance, suspended testosterone treatment and later commenced fertility treatment at a clinic registered for the provision of such treatment under the Human Fertilisation and Embryology Act 1990 (“the HFEA 1990”). The aim of that treatment was to achieve the fertilisation of one or more of his eggs in his womb. Records from the clinic show that his gender was registered as “M” for male.

7

In January 2017, he issued an application under the Gender Recognition Act 2004 (“the GRA”) to obtain a gender recognition certificate confirming that he was male. Determination of an application for such a certificate is made by a panel constituted under the GRA. The panel evaluates paper applications without a hearing. In addition to the application form and historical medical reports confirming diagnosis of gender dysphoria, Mr McConnell submitted a pro forma declaration stating that he “intend[ed] to continue to live in the acquired gender until death”. The GRA panel granted his application. A gender recognition certificate confirming his gender as male was issued on 11 April 2017. The legal effect of a certificate is that the gender of the person to whom the certificate relates “becomes for all purposes the acquired gender”: see section 9(1) of the GRA. This is, however, subject to exceptions, to which we will return.

8

On 21 April 2017, Mr McConnell underwent intrauterine insemination fertility treatment at the clinic, during which donor sperm was placed inside his uterus. The process was successful and Mr McConnell became pregnant. He carried the pregnancy to full-term and, in January 2018, gave birth to a son, YY.

9

Mr McConnell was required, and sought, to register YY's birth. Upon communication with the Registry Office, he was informed, by a decision dated 22 January 2019, that he would have to be registered as the child's “mother”, although the registration could be in his current (male) name.

10

He challenged the Registrar's decision by bringing a claim for judicial review on 3 April 2018. His primary claim was for a declaration that as a matter of domestic law he was to be regarded, and hence entitled to be registered, as YY's “father”, or otherwise “parent” or “gestational parent”. His secondary and alternative claim, on the basis that domestic law requires his registration as “mother”, was for a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“the HRA”) on the ground that the domestic regime is incompatible with his and/or YY's Convention rights under Articles 8 and 14 of the European Convention on Human Rights (“the Convention”).

11

YY issued an application for a declaration that Mr McConnell is YY's “father” under section 55A of the Family Law Act 1986. There was a further informal application for the Court to make an order under the Children Act 1989, granting him parental responsibility for YY (this was contingent on the judicial review/declaration applications).

12

Mr McConnell has made no secret of his identity. Indeed he has sought to raise public awareness of the situation in which he finds himself as a man who gave birth to a child by making a documentary called ‘Seahorse’, which has been shown at a number of film festivals and was broadcast by the BBC in September 2019. His anonymity order was varied in a separate judgment issued by the President on 11 July 2019: [2019] EWHC 1823 (Fam).

Decisions under appeal

13

The President considered both Mr McConnell's claim for judicial review, with an appended application for a declaration of incompatibility, and YY's application for a declaration of parentage at the hearing before him. The facts were not in dispute and the Court did not have to hear oral evidence.

14

After setting out the factual background, the relevant legislation and the parties' submissions, the President began his analysis of the issues in domestic law at para. 123. He set out his provisional conclusions on those issues at para. 149. They were provisional in the sense that he wished to revisit them in the light of his consideration of human rights law. He did so from para. 245 and concluded that there was no incompatibility between his provisional views and the Convention rights: see para. 273 (in relation to Article 8) and para. 277 (in relation to Article 14). He therefore confirmed that his overall conclusions remained the same at para. 280, where he set them out as follows:

i) At common law a person whose egg is inseminated in their womb and who then becomes pregnant and gives birth to a child is that child's “mother”.

ii) The status of being a “mother” arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth.

iii) Being a “mother” or “father” with respect to the conception, pregnancy and birth of a child is not necessarily gender-specific, although until recent decades it invariably was so. It is now possible, and recognised by the law, for a “mother” to have an acquired gender of male, and for a “father” to have an acquired gender of female.

iv) Section 12 of the GRA is both retrospective and prospective. By virtue of that section the status of a person as the father or mother of a child is not affected by the acquisition of gender under the GRA, even where the relevant birth has taken place after the issue of a GRC.

Relevant provisions of the Births and Deaths Registration Act 1953

15

Section 1(1) of the Births and Deaths Registration Act 1953 (“the 1953 Act”) requires the birth of every child born in England and Wales to be registered by the registrar for the sub-district where the child is born by entering such particulars in a register as may be prescribed.

16

There is both a long form of the certificate and a short form. It is only the long form which will contain particulars about parentage, since the short certificate must not do so: see section 33(2) of the 1953 Act.

17

The 1953 Act itself does not require the name of a father or mother to be inserted on a birth certificate, nor does it define those words. It does, however, define the words “father” and “mother”, in the context of an adopted child, as being the child's “natural father” and “natural mother”: see the interpretation section, section 41(1).

18

Regulations have been made under the 1953 Act: see the Registration of Births and Deaths Regulations 1987 (SI 1987 No. 2088). Regulation 7(1) requires the particulars which...

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