S (Children: Parentage and Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Moylan,Lady Justice King |
| Judgment Date | 27 July 2023 |
| Neutral Citation | [2023] EWCA Civ 897 |
| Docket Number | Case No: CA-2023-000036 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 897
Lady Justice King
Lord Justice Moylan
and
Lord Justice Peter Jackson
Case No: CA-2023-000036
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
Christopher Hames KC (sitting as a Deputy High Court Judge)
LS21P01690/LS22P00468
Royal Courts of Justice
Strand, London, WC2A 2LL
Will Tyler KC, Jennifer Lee and Samara Brackley (instructed by Expatriate Law Limited) for the Appellant
Jacqueline Renton and Nadia Campbell-Brunton (instructed by Kingsley Napley LLP) for the Respondent
Michael Gration KC and Katy Chokowry (instructed by Mills & Reeve Solicitors) for the Intervener (Reunite)
Hearing date: 17 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 27 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal raises two issues:
(1) Is the appellant CP the legal parent of children who are the subject of applications that she has made to the court, the children's mother being her former civil partner M?
(2) Does the Family Court have jurisdiction to entertain CP's applications?
The first question turns on the interpretation and application of s. 42 of the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’), while the second depends on ss. 2(1)(b)(i) and 2A(1) of the Family Law Act 1986 (‘FLA 1986’).
It is a misfortune for any family to find itself involved in litigation that raises a genuine point of law. This appeal gives rise to two entirely separate legal issues. The parties are therefore lucky to have lawyers that have been willing to give their services pro bono. The court is grateful to the advocates and those that have supported them, and to Reunite for its intervention and to its counsel for their submissions, also given pro bono. The way in which the appeal has been prepared and presented reflects credit on the family law community.
In this judgment I shall set out the factual background and state my conclusions about the first issue – parentage. In his judgment, Moylan LJ states his conclusions, with which I agree, about the second issue – jurisdiction. The reason why the issues are unrelated is that there is an unappealed finding that the children are ‘children of the family’ of CP and M. That finding is sufficient to found jurisdiction if it otherwise exists, as s. 42(4) FLA 1986 equates the position of children of the family who are not the children of the parties to a civil partnership with that of children who are. Accordingly, the issue of legal parentage makes no difference to the issue of jurisdiction, but it is nonetheless of immense significance to the whole family, and above all to the children.
The factual background
The children, who are all British citizens born in the UK, were conceived by fertility treatment and are now habitually resident in a Gulf State. I will describe the family history in a way that minimises the risk of them being identified.
CP and M met in 2005 and became civil partners in 2006, living together in this country. In 2007, M underwent treatment at a fertility clinic in the United States. A, born in 2008, was conceived by intrauterine insemination. CP was present at the birth. In 2009, M and CP entered into a parental responsibility agreement for A.
Section 42 HFEA 2008 created for the first time the possibility of legal parentage for non-biological same-sex female civil partners. The Act has effect for children born on or after 6 April 2009. Accordingly, it could not confer parenthood on CP in relation to A, but it is applicable to the younger children.
At the end of 2009, M discovered that CP had been having an affair. It was M's case that their relationship broke down irretrievably from this point, albeit that CP still sometimes lived in her home and that they resumed their intimacy from time to time; CP disputed this and said that their relationship continued for another five years with her living together with M and the children as a member of the family.
In 2010, M underwent a further round of treatment at the clinic in the United States, on this occasion by in vitro fertilisation. CP remained in this country, looking after A. A number of embryos were created and some were transferred, leading to the birth of children in 2011, at which CP was again present. The remaining embryos were transferred in 2013 and further children were born. CP was not present at the birth as her father was dying, but she visited hospital every day. In 2012, M met another woman, who she later married.
CP is not named on any of the children's birth certificates. A's surname is a combination of the surnames of M and CP. The younger children's surname is M's surname and they have CP's surname as their last middle name. When the children were baptised in 2014, CP fully participated in the ceremony. M is recorded on the baptism certificates as their mother and CP as their guardian.
At the end of 2014, M moved to a Gulf State with the elder children, while the younger children remained for five months in England with CP and a nanny. CP brought the younger children to M in 2015, returning to England shortly afterwards. M and CP made an amicable arrangement for the children to stay with CP in England for six or seven weeks each summer, and in the Gulf for one or two weeks over every Christmas and New Year period when M was abroad. This arrangement continued until 2019.
In 2016, the parties' civil partnership was dissolved by proceedings in England. In 2017, a final financial remedy consent order was made by the Family Court. The order recorded that the parties wanted to give effect to an agreement on child support pursuant to the Child Support Act 1991, directing CP to pay child periodical payments to M for ‘the children of the family’.
In 2018, M married her partner, and in 2019 they entered into and registered parental responsibility agreements for all the children. In 2021, CP married her own partner.
From 2019 onwards, CP's time with the children reduced. She last saw A in December 2020 and she last saw the younger children briefly in the Gulf in December 2021. Since 2021, A has been at boarding school in England, spending some holiday time with M in the Gulf and some with M's family in England. The younger children live with M and her wife in the Gulf, where they go to school.
The proceedings
In February 2022, CP applied for a child arrangements order under s. 8 of the Children Act 1989, seeking time with the children during the school holidays: two weeks over Christmas and the New Year, one week at Easter and three weeks at summer, with additional ad hoc time with A to be agreed between her and him. Her application said that her status as a same-sex parent prevented her from applying to the Court in the Gulf State and that the English courts had jurisdiction under the FLA 1986. In March 2022, she issued a further application seeking permission to invoke the court's inherent jurisdiction and stating that she would therefore have no other means of having her parental rights determined and of exercising them.
The legal position in the Gulf State was agreed between the parties. Same sex relationships are criminalised. A non-biological, same-sex parent of a child is not recognised as a parent and has no standing to apply to court in relation to contact or other aspects of parental responsibility.
As to the legal position in the US state where the clinic is situated, civil partnerships are not recognised, though same-sex marriage was recognised in 2014. In 2019, a law was enacted which provided that the spouse of a child's gestational mother is the child's other parent: previously the law had provided for the husband of the gestational mother of a child to be the child's other parent. It was accepted before us that, so far as the clinic was concerned, it was (in contrast to the position in this country) entirely a matter for M and CP as to whether they presented as a couple.
At a case management hearing, it was determined that the preliminary issues for the court were:
“(i) Is the applicant a parent to the children, or any of them?
(ii) Does this court have jurisdiction to make child arrangements orders and/or other orders regarding the children's welfare?
(iii) Should any such jurisdiction be exercised?”
The matter came before Christopher Hames KC, sitting as a deputy High Court Judge, between 14 and 18 November 2022. He read and heard evidence from CP and five witnesses called by her, and from M and two witnesses called by her. On 2 December 2022, he handed down a reserved judgment. His decision was that CP was not the legal parent of the younger children but that all the children were children of the family of M and CP. He concluded that no jurisdiction existed in respect of the younger children and he dismissed the proceedings regarding them. He found, applying ss. 2(1)(b)(ii) and 3(1)(b) FLA 1986, that the court had jurisdiction in respect of A, due to his presence in England and Wales at the time CP's application was made. He stayed the proceedings regarding A, with liberty to restore, so that CP could consider whether to proceed in respect of A alone: if not restored by 28 February 2023, they were to be dismissed.
There has been no appeal from the judge's finding that the children are children of the family. CP applied for permission to appeal from the ruling in relation to parentage of the younger children and the orders in respect of jurisdiction. On 17 February 2023, permission to appeal was granted by Moylan LJ on three grounds:
“1. The judge erred in deciding that the applicant is not a parent of the younger children, and, in particular, the judge wrongly interpreted and...
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Re London Borough of Hackney v P and Others (Jurisdiction: 1996 Hague Child Protection Convention)
...is open to the court to adopt that approach.” 81 In respect of domestic authorities, I would finally refer to what I said in S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897 (decided after the hearing in the current appeal), at [97]: “There is no equivalent in the 1996 Conventi......