J v C
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Richards |
| Judgment Date | 15 May 2006 |
| Neutral Citation | [2006] EWCA Civ 551 |
| Docket Number | Case No: B4/2005/1838, B4/2006/0136 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 May 2006 |
[2006] EWCA Civ 551
IN THE SUPREME COURT OF JUDICAT
COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM THE HIGH COURT OF JUSTICE—FAMILY DIVIS
MR JUSTICE HED
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Wall and
Lord Justice Richards
Case No: B4/2005/1838, B4/2006/0136
C100POO724
Mr Valentine LeGrice QC and Professor Rebecca Bailey-Harris (instructed by Messrs George Ide Phillips, Solicitors) for the Appellant
Miss Judith Parker QC (instructed by Thomas Eggar, Solicitors) for the 1st Respondent
Robin Tolson QC and Miss Heather Pope (instructed by CAFCASS Legal) – for the 2 nd Respondent
The appeal
At the outset of the hearing of this appeal, we made an order imposing reporting restrictions prohibiting the identification both of the child to whom it relates, and the adults who are the parties to it including the elder child, who is now an adult. That order reflects the highly unusual and sensitive nature of the appeal, and echoes an injunction against publicity made by a circuit judge as long ago as September 1994. Against that background, I propose to identify both the adults and the child concerned in the case by initials only, and any report of our judgments should follow the same course.
The appellant is Mr. J. The respondent to the appeal is Mrs. C. The child concerned is E, a girl, now aged 14, who is represented in the proceedings by her guardian, CAFCASS Legal. Mrs. C is the mother both of E, and of an older child C, who was also a party to the proceedings, but who is now 18 and to whom the provisions of the Children Act 1989 (CA 1989) no longer apply. E and C live with Mrs. C, and the latter's husband, Mr. C.
Before the trial judge, Hedley J, were two preliminary issues arising in proceedings under Part II of CA 1989 instituted by Mr. J in 2000. Those issues were formulated in the following way: (1) did Mr. J need leave pursuant to section 10(9) of CA 1989 to bring proceedings for specific issue and prohibited steps orders under CA 1989 section 8 in relation to C and E? and (2) if he did, should it be given? Underlying that legal formulation, however, was a simple but profound question. E had been conceived by means of artificial insemination by donor (AID) . On the facts of this case, was Mr. J, as a matter of law, E's parent, and thus her father?
The order made by Hedley J order was to the following effect: -
"It is declared that Mr. J is not a 'parent' of E within the meaning of s 10(4) (a) of CA 1989 and requires leave under CA 1989 section 10(1) (a) (ii) to make an application for an order under CA 1989 section 8 in relation to E."
Having reached that conclusion, the judge refused Mr. J leave to make an application for specific issue and prohibited steps orders under CA 1989, section 8. He did so, however, because Mrs. C was willing to give, and gave, an undertaking to the court in the following terms: -
"….. to take the advice of Dr. E (a consultant psychiatrist) as to how and when E should be informed of her origins and to liaise with CAFCASS and to consider any advice offered by CAFCASS on this issue."
The judge made a number of ancillary and consequential orders, none of which is relevant for present purposes. With permission granted by the judge, Mr. J now appeals against the declaration set out in paragraph 4 above.
The facts
Although the argument before the judge ranged widely, and included submissions relating both to the Gender Recognition Act 2004 (GRA 2004) and as to whether rights under the European Convention on Human Rights (ECHR) were engaged, this appeal, in my judgment, turns on a short point of statutory construction. In these circumstances, I propose to relate only those facts which are directly germane to the resolution of this appeal.
This is the second time that the relationship between Mr. J and Mrs. C has been the subject of adjudication in this court. The reader will find a full exposition of the background facts in the judgment of Ward LJ in this court in the earlier litigation, reported as S-T (formerly J) v J [1998] Fam. 103 at 108–111.
For present purposes, it seems to me that the relevant facts are as follows:—
i) On 17 July 1977, Mr. J and Mrs C went through a ceremony of marriage. At that point, Mrs. C was a spinster aged 20. Mr. J was 30, and suffering from gender dysmorphia. Although living as a man since approximately the age of 17, he had been registered on the day after his birth as a female, and, at the date of the ceremony of marriage was, both in fact and in law a woman. This was something he knew, and which he concealed both from Mrs. C and from the priest who conducted the ceremony.
ii) Thereafter Mr. J and Mrs. C lived together for many years as though husband and wife. Mrs. C remained in ignorance of the fact that Mr. J was a woman.
iii) C and E were conceived by means of AID in 1986 and 1991 respectively. Although what Mr. J said to the clinic which provided the treatment has never been the subject of judicial investigation, it is plain that he did not disclose the fact that he was a woman to anybody involved in the process.
iv) The relationship between Mr. J and Mrs. C broke down in 1994 and Mrs. C filed a petition for divorce on 22 April of that year. During the divorce proceedings she saw a copy of Mr. J's birth certificate and realised (for the first time) that Mr. J was a woman.
v) On 26 May 1994 the divorce petition was dismissed, and proceedings taken for nullity of marriage. On 19 August 1994, a decree nisi of nullity was pronounced in undefended proceedings in the county court, in which "the marriage in fact had and solemnised" on 7 July 1977 was "pronounced and declared to have been by law void by reason of at the date of the said ceremony the parties were not respectively male and female". That decree nisi was made absolute on 10 October 1994.
vi) On 18 May 1995, the President of the Family Division, Sir Stephen Brown, dismissed Mr. J's application for both direct and indirect contact with C and E. No contact between E and Mr J has taken place since.
vii) On 25 January 1996, Hollis J dismissed Mr. J's application for ancillary relief in the nullity proceedings on the determination of a preliminary issue as to whether Mr. J should be debarred from continuing his claim for ancillary relief on the grounds that it was contrary to public policy. Hollis J held that by purporting to marry Mrs. C, Mr. J had committed perjury.
viii) In April 1996, Mr and Mrs. C married.
ix) On 21 November 1996 this court (Ward and Potter LJJ and Sir Brian Neill) dismissed Mr. J's appeal against Hollis J's order:—see S-T (formerly J) v J (supra). The Court was divided in its reasoning. Ward LJ took the view that the principle of public policy that no one should profit from their own wrong applied; the majority (Potter LJ and Sir Brian Neill) took the view that the principle of public policy identified was not determinative, but that on the facts, and in the light of Mr. J's conduct, no court could properly have exercised its discretion to grant him ancillary relief.
x) On 25 April 1997, Sir Stephen Brown P dismissed a renewed application by Mr. J for contact with the two children.
xi) In April 1999, Mr. and Mrs C issued adoption proceedings in relation to the children. On 19 April 1999, the President of the Family Division, Dame Elizabeth Butler-Sloss gave directions for the trial of a preliminary issue as to whether Mr. J was to be regarded as a parent of either child within the meaning of the Adoption Act 1976. In September 1999, however, Mr. and Mrs. C withdrew the application.
xii) On 20 November 2000, Mr. J issued a form C1 seeking specific issue and prohibited steps orders in relation to each child. On 3 November 2004 HH Judge Barnett directed the trial of the two preliminary issues determined by Hedley J on 29 July 2005.
xiii) On 1 June 2005, Mr. J obtained a Gender Recognition Certificate (GRC) under GRA 2004. This shows (1) his gender to be male, and (2) that he is, from 1 June 2005 "of the gender shown". He has also obtained a fresh birth certificate, giving his sex at birth as male.
Although, on the face of it, there has been a very substantial delay in the resolution of the proceedings instituted by Mr. J on 20 November 2000, the judge found that there was nothing suspicious in the lapse of time, and I say no more about it.
The relief sought by Mr. J in the CA 1989 proceedings
The judge recorded Mr J's aspirations in the CA 1989 proceedings as limited to the following: -
i) A prohibited steps order that the children should not be informed of: -
a) their parentage, and
b) the reasons for the breakdown in relationships and in particular Mr. J's gender save at such times and in a manner advised by Dr E (a consultant psychiatrist) or such other consultant child psychiatrist as may be agreed;
ii) a specific issue order that Mrs. C seek the advice of Dr. E; and
iii) an order that Mrs C swear an affidavit setting out whether she intends to proceed in accordance with a letter dated 6 November 2002.
The letter to which reference is made was from Mr. J's solicitors to Mrs. C's solicitors setting out Mr. J's view of the manner in which both children should be informed of their respective histories.
Is the relief sought by Mr. J in the proceedings under CA 1989 justiciable?
I have already recorded the undertaking given by Mrs. C to the judge. Mr. J has, in my judgment, achieved by that undertaking all he can reasonably expect to achieve in the proceedings. For this reason, at the outset of the hearing, I...
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