P v Q & Ors
[2024] EWFC 85 (B)
P v Q and F (Child: Legal Parentage)
26 July 2024
[2024] EWCA Civ 878
Court of Appeal
A child was conceived using both artificial and natural insemination, leading to a dispute over who is her legal parent. The court decided the biological father is the legal father because the legal mother couldn't prove the artificial insemination was the method of conception. This shows how tricky legal parentage can be when things aren't done formally.
Key Facts
- •X, a six-year-old child, was conceived through a combination of artificial insemination (AI) and natural insemination (NI) by her genetic mother P and genetic father F, while P was in a same-sex marriage with Q.
- •P and Q, X's registered parents, initially believed Q to be X's second legal parent.
- •After P and Q separated, P revealed the NI, leading to a court application declaring F as X's legal father.
- •The method of X's conception (AI or NI) is unclear, making burden of proof central to the case.
- •The court had to determine whether the Human Fertilisation and Embryology Act 2008 (HFEA 2008) applied, impacting Q's parental status.
Legal Principles
Legal parenthood involves genetic, gestational, and psychological aspects, but the law must formally identify a child's legal parents due to the associated rights and responsibilities.
Re G (Children) (Residence: Same‐sex Partner) [2006] UKHL 43
The baseline position at common law is that a child's legal parents are the gestational mother and genetic father, subject to modifications for married or civil partnered men and children born through assisted reproduction.
Common Law, HFEA 2008, Legitimacy Act 1976, Marriage (Same Sex Couples) Act 2013
The HFEA 2008 only applies to children born through assisted reproduction; otherwise, common law principles apply.
In re R (A Child) (IVF: Paternity of Child) [2005] UKHL 33; M v F & H (Legal Paternity) [2013] EWHC 1901 (Fam)
Section 55A of the Family Law Act 1986 allows for declarations of parentage, but the court may refuse if it's not in the child's best interests.
Family Law Act 1986, s. 55A
In declarations of parentage, the court must be satisfied with the truth of the proposition to be declared, unless it's contrary to public policy.
Family Law Act 1986, s. 58(1)
Birth registration is not conclusive proof of parentage, only prima facie evidence.
Brierley v Brierley [1918] P 257
Outcomes
The appeal was dismissed; the lower court's declaration that F is X's legal father and Q is not was upheld.
The court found that P met the burden of proving F's genetic parentage and NI during the conception window. Q failed to demonstrate that the HFEA 2008 applied because she couldn't prove conception occurred through AI.