S (Children: Parentage and Jurisdiction), Re
[2023] EWCA Civ 897
R v T
2 December 2022
[2022] EWHC 3362 (Fam)
High Court
Two women were together and had kids via a sperm donor. After breaking up, one woman wants access to the kids. The judge said she's not a legal parent, but the kids were considered part of their family. However, the laws of the country the kids live in don't allow the woman to claim parental rights. The judge only agreed to consider one of the kids because that one was in England at the time the case started.
Key Facts
- •Applicant (R) and Respondent (T) were in a civil partnership from 2006 to 2016.
- •Respondent gave birth to a sibling group of children, conceived through fertility treatments using a sperm donor.
- •Applicant is the non-biological mother, has parental responsibility for the eldest child (A), and her surname appears on all children's birth certificates.
- •Children are habitually resident in the UAE, but A attends boarding school in England.
- •Applicant seeks child arrangement orders for all children, claiming to be their parent.
- •Respondent denies applicant's parental role, describing her as a close family friend.
- •Jurisdictional issues are central: whether the applicant is a parent under the HFEA 2008 or a 'child of the family' under the FLA 1986, and whether the English court has jurisdiction.
- •The UAE does not recognize same-sex parents, criminalizes same-sex relationships, and presents a jurisdictional barrier for the applicant.
Legal Principles
HFEA 2008, s.42: Rebuttable presumption that the civil partner of a woman undergoing fertility treatment is a parent unless it is shown she did not consent.
Human Fertilisation and Embryology Act 2008
FLA 1986, s.2(1)(b)(i): Jurisdiction if child arrangement order arises in connection with matrimonial or civil partnership proceedings.
Family Law Act 1986
FLA 1986, s.2(1)(b)(ii), s.3: Jurisdiction if child is present in England and Wales, and immediate exercise of powers is necessary for protection.
Family Law Act 1986
FLA 1986, s.42(4A): Definition of 'child of the family' – any child treated by both parties as such.
Family Law Act 1986
Parens patriae jurisdiction: Inherent jurisdiction of the High Court to protect children, but subject to restrictions in the FLA 1986 and cautious approach due to international considerations (Re B [2016] AC 606).
Inherent Jurisdiction of the High Court
Hague Convention 1996: Establishes habitual residence as primary basis for jurisdiction, but does not apply in this case because the UAE is not a signatory.
Hague Convention 1996
Outcomes
Applicant is not a parent under s.42 HFEA 2008.
No evidence of consent to fertility treatment; respondent's evidence that applicant did not consent is credible.
Children are 'children of the family' under s.42(4A) FLA 1986.
Parties entered parental responsibility agreement; applicant played a significant role in children's lives; evidence of family life.
Court lacks jurisdiction under the 'matrimonial jurisdiction' of FLA 1986.
Insufficient connection between the current application and the dissolved civil partnership proceedings.
Court has jurisdiction in respect of A under the 'presence' jurisdiction.
A was present in England and Wales when the applications were made.
Court declines to exercise parens patriae jurisdiction.
No evidence of children needing protection in the UAE; applicant's request essentially seeks contact orders, restricted under FLA 1986.
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