The Court of Appeal’s decision in Re S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897

Kingsley Napley LLP represented the respondent, pro bono, in the case of Re S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897. The Court of Appeal has just released its judgment, having heard the matter earlier this year.

Background
The case concerns five children, all British citizens born in the UK between 2008 and 2013, who now live in a Gulf State. The respondent is the biological and gestational mother of the children, and they all share the same genetic father (by virtue of sperm donation). The appellant was the civil partner of the respondent at the time the children were born but was not named on the children’s birth certificates. The civil partnership was dissolved in 2016 with a limited financial order made by consent, while the respondent’s position was that their relationship had broken down years prior to this. At the end of 2014 and beginning of 2015, the respondent moved with the children to a Gulf State, and the appellant remained in England. The appellant maintained contact with the children during summers and Christmases, but from 2019 onwards, the appellant’s time with the children reduced.

The appellant made an application to the court in England for a child arrangements order in February 2022. The appellant argued 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 Family Law Act 1986 (“FLA”). The appellant contended that she is and was always a legal parent to the children, which the respondent disputed.

The High Court's decision

At first instance, Christopher Hames KC, sitting as a Deputy High Court Judge, found that:

• while the appellant had treated the children as “children of the family” (finding that her role was effectively one of a “step parent”), which meant that the court had the ability to consider jurisdiction under the FLA, she was not a legal parent of the children; and
• there was not sufficient connection between the dissolution proceedings and the current child arrangements proceedings for jurisdiction to exist under the FLA.

The appellant appealed the decision.

Legal parentage: section 42 of the Human Fertilisation and Embryology Act 2008

The first issue the Court of Appeal considered was whether the appellant was the legal parent of the children.

Under section 42 of the Human Fertilisation and Embryology Act 2008 (“HFEA”), if the parties were in a civil partnership at the time of the respondent’s fertility treatment, the appellant will be treated as the children’s parent, unless it can be shown that they did not consent to the respondent’s fertility treatment. At first instance, Christopher Hames KC concluded that there was no evidence that the appellant either positively objected to the treatment, or that she had clearly consented to it. He went on to find, on balance, that there was evidence that she did not consent; primarily because there was no deliberate exercise of choice by the appellant in respect of the fertility treatment but rather only an awareness or acquiescence of the decisions made by the respondent. The fact that there was evidence of the absence of consent had the effect of rebutting the presumption of legal parentage.

The appellant appealed the decision on the basis that the judge had wrongly interpreted and wrongly applied the provisions of s.42, HFEA to the facts of the case. The Court of Appeal held that the appellant had consented and was therefore a legal parent, for the following reasons:

• The judge’s focus on whether there had been a deliberate exercise of choice by the appellant was a narrowing of the statutory test. The judge should have considered whether consent could be inferred from all the circumstances, and particularly whether what he described as “acquiescence” from the appellant could, in truth, be consent that was not expressly stated.
• The judge failed to give any weight to evidence which was in favour of the appellant having given consent (such as the appellant’s participation in the assisted reproduction process, attendance of the births and support of the respondent and integration in the lives of the children over a period of years). The Court of Appeal’s view was that in the context of a relationship between cohabiting civil partners, it would be highly unusual for one partner to be passive and simply “acquiesce” while the other partner is conceiving and bringing children into the home.
• The judge placed undue reliance on several matters that were of no or limited relevance to the issue of consent, including the appellant’s lack of knowledge and involvement with the assisted reproduction process. The Court of Appeal’s view was that in many relationships, one partner will be more executive than the other, and the court’s task was not to search for equivalence. Furthermore, the fact that the appellant was not named on the children’s birth certificates was a significant feature, but it could not sustain the judge’s conclusion without substantial support from elsewhere in the evidence.

Jurisdiction: sections 2(1)(b)(i) and 2A(1) of the Family Law Act 1986

The second issue the Court of Appeal considered was whether the family court has jurisdiction to determine the appellant’s applications regarding the children.

Under sections 2(1)(b)(i) and 2A(1)(a) of the FLA, the court of England & Wales can make orders in respect of children if the Hague Convention does not apply, provided that the question of making the order arises in or in connection with continuing matrimonial or civil partnership proceedings for divorce or dissolution.

The appellant appealed the first instance decision on the basis that the judge had wrongly interpreted and wrongly applied ss. 2(1)(b)(i) and 2A(1)(a) of the FLA to the facts of the case, and that the judge wrongly declined to accept or to recognize that the children’s prior relationship with the appellant, their and her right to respect for family life, and to the enjoyment of that right without discrimination, and the absence of any other forum to determine the children’s welfare issues required him to read down or otherwise interpret the relevant provisions in such a way that the courts of England & Wales were able to entertain jurisdiction.

The Court of Appeal held, applying Re T (Jurisdiction: Matrimonial Proceedings) [2023] EWCA Civ 285, that there was jurisdiction under the FLA for the following reasons:

• After considering the development of the legislation that culminated in the FLA, including the Law Commission Report from 1985, which preceded it, and the decision of Lady Hale in A v A [2014] AC 1, the Court of Appeal concluded that the FLA was not confined (or intended to be confined) to intra-UK cases and, therefore, applies to international cases involving a non-UK jurisdiction.
• The words "the Hague Convention does not apply" meant "the 1996 Convention does not apply to give jurisdiction to England & Wales or to any other Contracting State." As a result, the Court of Appeal determined that domestic legislation, i.e., the FLA, should be consulted to determine jurisdiction. The Court of Appeal cited several authorities that referred to Brussels IIa (which was later removed from s.2 of the FLA following Brexit), explaining that only if the Regulation did not apply at all to give jurisdiction to any Contracting State, would the residual jurisdiction of the FLA come into play, and the same principle would apply for the 1996 Convention.
• The elements required to bring a case within s.2(1)(b)(i) FLA are as follows: a) the parties in the matrimonial or civil partnership proceedings are or were "the parents of the child concerned" (including a child of the family); b) the matrimonial or civil partnership proceedings are or did take place in England and Wales (concluded other than by dismissal); and c) one or both parties seek s 1(1)(a) order (i.e., a s.8 Children Act 1989 order). The Court of Appeal's view was that when incorporating and amalgamating s.42 of the Matrimonial Causes Act 1973 and s.4 of the FLA into the new ss.2 and 2A FLA, there was no intention to change or limit this broad jurisdiction. Therefore, there was no requirement for a factual or temporal overlap between the dissolution proceedings and the children proceedings for the latter to be considered "in connection with" the former.

As is usual, the specific circumstances of the case were relevant to the court’s decision. Re S provides further guidance in cases in which legal parentage and jurisdiction under the FLA are at issue.

About the authors

Connie is a Partner in the family team and has experience of dealing with all aspects of private family work relating to both finances and children.

Liam is an associate in the Family and Divorce team, having completed his training contract at Kingsley Napley in September 2022.

Further information

Full case information here.

If you have any questions regarding the blog above, please contact Connie Atkinson and Liam Hurren  in our Family team.