J v C (Void marriage: Status of children)
| Jurisdiction | England & Wales |
| Judgment Date | 15 May 2006 |
| Date | 15 May 2006 |
| Court | Court of Appeal (Civil Division) |
COURT OF APPEAL
Before Lord Justice Thorpe, Lord Justice Wall and Lord Justice Richards
IN ORDER to be a parent of a child born through artificial insemination by a donor the parent had to be the other party in a marriage with the mother. Where, therefore, the other party was a woman, there could be no marriage and the other party could not be the child's parent.
The Court of Appeal so held in a reserved judgment in dismissing an appeal brought by Mr J against a declaration made by Mr Justice Hedley on July 29, 2005, in the Family Division that Mr J was not the parent of a child born in 1992 to Mrs C, at a time when Mr J and Mrs C lived together as a married couple before Mrs C found out the truth that Mr J was a woman at the time.
Mr Valentine LeGrice, QC, who did not appear below, and Miss Rebecca Bailey Harris for Mr J; Miss Judith Parker, QC, for Mrs C; Mr Robin Tolson, QC, who did not appear below, and Miss Heather Pope for the child, E.
LORD JUSTICE WALL said that before the trial judge there was a simple but profound question. Was Mr J the parent of E who had been conceived by artifical insemination by a donor? The judge found that he was not.
A full exposition of the background facts could be found in S-T (formerly J) v JELR ((1998) Fam 103).
In 1977 Mr J and Mrs C went through a ceremony of marriage. Although living as a man for the previous 13 years, he was at the date of the marriage in law and in fact, a woman.
He concealed that from Mrs C and the priest who conducted the ceremony. Two children were conceived by AID in 1986 and 1991. The relationship broke down in 1994 and Mrs C filed for divorce.
During the proceedings she saw a copy of his birth certificate and realised he was a woman. The divorce proceedings were dismissed and a decree of nullity was pronounced.
Two Acts of Parliament defined parenthood in the context of AID. The first was the Family Law Reform Act 1987 and the second the Human Fertilisation and Embryology Act 1990. The judge decided the case on the basis that section 28 of the 1990 Act applied.
In this court, the consensus was that the 1987 Act applied, given the date on which AID must have occurred.
In his Lordship's judgment, the 1990 Act did not apply. On any view, Mr J must have misled the doctors treating Mrs C. Had the couple approached a clinic after the introduction of the 1990 Act and Mr J revealed...
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