P v Q and F (Child: Legal Parentage)

Hearing date: 18 July 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 26 July 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

Few things in life are more important than parentage for a child and parenthood for a parent, with all the wider family relationships thereby created. Parenthood can be manifested in a number of ways: genetic, gestational and psychological, as explained in Re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43, [2006] 1 WLR 2305 at [32–37]. However, at a more formal level the law needs to identify who a child's legal parents are, because legal parenthood brings many rights and responsibilities and creates legal relationships across generations.

This appeal concerns the legal parentage of X, who is aged six. Her genetic and gestational mother is P, and her genetic father, confirmed by scientific testing, is F. Her registered parents are P and Q, who is P's former wife. Until X was five, everyone believed that Q was her second legal parent, but on 19 April 2024 Mrs Justice Gwynneth Knowles declared that F is her legal father and in consequence he will replace Q on her birth certificate.

This painful situation arises from the informal conception arrangement that led to X's birth. P and Q agreed with F, then a stranger and now living abroad, that he would act as their sperm donor. On three occasions, F provided sperm that was used for the artificial insemination (‘AI’) of P. The statutory code contained in the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’) provides that this means of conception would confer legal parentage on Q.

However, unknown to Q, and at the same time as the AI was taking place, P and F engaged in sexual intercourse involving natural insemination (‘NI’), also on three occasions. X was conceived during the third occasions of AI and NI, and it is impossible to know which method of insemination led to her conception.

When X was three, P and Q separated and later divorced. There were disagreements about the arrangements for X. At the end of 2022, P revealed that NI had taken place, and she applied to the court for a declaration under the Family Law Act 1986 (‘FLA 1986’) that F is X's legal father. There was an issue about whether NI had in fact occurred. The judge found that it had, and she concluded that, as Q could not show that X was born from AI, F is the legal father. Q now appeals from that reasoning. She argues that it was for P to show that X was not conceived as a result of AI. This is therefore a rare, and so far unique, case in which the burden of proof will be decisive.

X exists because P and Q wanted her, and F was at that time no more than a means to an end. It may therefore seem strange that her parentage should be determined by the way in which she was conceived, but in this area a line must be drawn somewhere.

In saying this, I note the brief obiter dicta in R (On the Application of TT) v Registrar General for England and Wales [2019] EWHC 2384 (Fam), [2020] Fam 45, at [129], and on appeal in R (McConnell and YY) v The Registrar General for England and Wales [2020] EWCA Civ 559, [2021] Fam 77 at [26], that it would clearly be undesirable for the attribution of parental status to turn upon the method of conception and that the issues of law in that case “cannot turn on the happenstance of whether conception took place naturally or by means of treatment under the HFEA 1990 and HFEA 2008”. That case called for the interpretation of the Gender Recognition Act 2004 and the Human Rights Act 1998 to determine whether a transgender man who gave birth to a child should be registered as the child's mother, or as the child's father or parent. The statements do not shed light on the issue in the present case, where the legislation draws a deliberate distinction between assisted reproduction and reproduction by other means, here between AI and NI.

Similarly, the question of law that arises here cannot be determined by the deserts of the adults. As Hale LJ said in Mrs U v Centre for Reproductive Medicine [2002] EWCA Civ 565, [2002] Lloyd's Rep Med 259, at [24]:

“Parliament has devised a legislative scheme and a statutory authority for regulating assisted reproduction in a way which tries to strike a fair balance between the various interests and concerns. Centres, the HFEA and the courts have to respect that scheme, however great their sympathy for the plight of particular individuals caught up in it.”

The identification of X's parentage does not of course determine the welfare decisions that remain to be made by the judge. These include the question of whether Q should be granted parental responsibility for X.

We heard the appeal on the morning of 18 July 2024, which had been fixed as the first day of the final welfare hearing before the judge. After hearing argument, we were able to inform the parties that the appeal would be dismissed, allowing the welfare hearing to proceed. We now give reasons for our decision.

Declarations of Parentage

Where a dispute about legal parentage arises, there is a specific statutory remedy. The power of the High Court or the family court to make declarations of parentage is contained in Part III of the FLA 1986, entitled ‘Declarations of Status’. Section 55A FLA 1986, as inserted by the Child Support, Pensions and Social Security Act 2000, section 83, and amended by the Crime and Courts Act 2013, section 17, Schedule 11, relevantly provides:

55A Declarations of parentage.

(1) Subject to the following provisions of this section, any person may apply to the High Court or the family court for a declaration as to whether or not a person named in the application is or was the parent of another person so named.

(2–4) …

(5) Where an application under subsection (1) above is made and one of the persons named in it for the purposes of that subsection is a child, the court may refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child.

(6) …

(7) Where a declaration is made by a court on an application under subsection (1) above, the prescribed officer of the court shall notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of that declaration.

This provision is supplemented by section 58:

58 General provisions as to the making and effect of declarations.

(1) Where on an application to a court for a declaration under this Part the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.

(2) Any declaration made under this Part shall be binding on Her Majesty and all other persons.

(3) A court, on the dismissal of an application for a declaration under this Part, shall not have power to make any declaration for which an application has not been made.

(4) No declaration which may be applied for under this Part may be made otherwise than under this Part by any court.

(5–6) …

Rule 8.20 of the Family Procedure Rules 2010 identifies the respondents to an application for a declaration of parentage. They are (i) the person whose parentage is in issue, except where that person is a child; and (ii) any person who is or is alleged to be the parent of the person whose parentage is in issue, except where that person is the applicant or is a child.

In the present case, P's application for a declaration, in Form C63, was issued on 19 September 2023. The respondents are named as X, Q and F. The form does not require the applicant to specify the terms of the declaration sought, but in a section entitled ‘Why are you making this application?’ P gave a short account of her case and ended: “This will mean that X's birth is registered incorrectly and a declaration of parentage is sought so that the birth certificate may be corrected.”

A question arose obliquely during the hearing of this appeal as to the scope of the undefined word ‘parent’ in section 55A. Is the court only concerned with the status of legal parentage, or does the power also extend to declarations of genetic parentage? There are a number of first instance decisions that appear to suggest that it does: M v W (Declaration of Parentage) [2007] 2 FLR 270 (Hogg J); Re H No. 1 [2020] EWFC 74, [2021] Fam 349 (MacDonald J), at [50]; and Re Ms L & Anor [2022] EWFC 38, [2022] Fam 315 (Cobb J). These concerned applications related to the birth parentage of adopted children. The courts appear to have approached the matter on the basis that a declaration under section 55A can concern genetic parentage, but an alternative interpretation, not explored in those cases, would be that what was at issue was the child's pre-adoption legal parentage, something that would clearly fall within the scope of section 55A(1). This issue may need to be definitively resolved on another occasion, but this case undoubtedly...