R v T
[2022] EWHC 3362 (Fam)
S (Children: Parentage and Jurisdiction), Re
27 July 2023
[2023] EWCA Civ 897
Court of Appeal
Two moms had kids through IVF. One (M) was the biological mom, but the other (CP) was involved and they were a family. The court said CP is also a legal mom and the UK court can decide on the kids' living arrangements, even though they live overseas.
Key Facts
- •CP and M, former civil partners, had children through fertility treatment in the US.
- •CP was involved in the process, present at some births, and actively participated in the children's lives.
- •The children are habitually resident in a Gulf State where same-sex relationships are criminalized and CP has no legal standing.
- •CP applied for child arrangements orders in the UK, arguing parentage and jurisdiction.
- •The lower court found CP was not the legal parent of the younger children but that all children were 'children of the family,' granting jurisdiction only for the eldest child.
Legal Principles
Legal parentage for non-biological same-sex female civil partners is determined by s. 42 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008). A rebuttable presumption exists that the civil partner is a parent unless it's shown they did not consent to the conception.
HFEA 2008, s. 42
The Family Court's jurisdiction to entertain applications concerning children is governed by ss. 2(1)(b)(i) and 2A(1) of the Family Law Act 1986 (FLA 1986). The court has jurisdiction if the question of making the order arises in connection with matrimonial or civil partnership proceedings.
FLA 1986, ss. 2(1)(b)(i), 2A(1)
The court's assessment of consent under s. 42 HFEA 2008 is a factual inquiry considering all circumstances; a deliberate exercise of choice is not strictly required.
Re G (Human Fertilisation and Embryology Act 2008)
Outcomes
The appeal regarding parentage was allowed.
The lower court misinterpreted s. 42 HFEA 2008 by requiring a 'deliberate exercise of choice' for consent, overlooking the possibility of inferring consent from the circumstances. The court failed to give weight to CP's participation and the overall family context. The evidence strongly suggests CP consented.
The appeal regarding jurisdiction was allowed.
The court clarified the meaning of 'in connection with' in FLA 1986, finding that a simple connection suffices, not requiring a significant factual overlap between the civil partnership proceedings and the child arrangements application. The court has jurisdiction because the parties were involved in the civil partnership that led to the family unit in question.