Cambridge Family Law Practice

The former civil partner of a woman now living in the Middle East is the legal parent of her children, the Court has ruled.

 

The precedent-setting case concerned children born to a same sex couple. Referred to as ‘CP’ and ‘M’ in the ruling, they entered a civil partnership in 2006. At the time both lived in the UK.

 

In 2007, M underwent fertility treatment in the United States, and a child, ‘A’, was born the following year. CP attended the birth. The couple entered a parental responsibility agreement. That same year, the Human Fertilisation and Embryology Act came into effect, with Section 42 introducing the possibility of legal parentage for female civil partners.

 

In 2010, a second round of fertility treatment in the US resulted in the birth of further children. CP remained at home during the treatment, looking after A, but again attended the birth. Further fertility treatment followed in 2013 and further children were born. This time CP did not attend the birth because her father was passing away.

 

In 2012, the civil partnership ended when M met another woman. She and her new partner later married. Later M moved to an unspecified state in the Gulf, according to a Court of Appeal judgement, with the older children accompanying her. The younger children stayed with CP in the UK for a period. Then she took the youngsters over to live with M and returned to England. M and CP reached an “amicable agreement” that the children would travel back to the UK each summer for an extended visit.

 

In 2016 CP and M’s civil partnership was finally dissolved. The settlement included a mutual agreement that CP would pay child maintenance to M. CP later remarried.

 

The contact agreement continued until 2019, after which CP’s time with the children began to steadily decrease, as her relationship with her former partner became more distant. By summer 2023, she had not seen A for two and a half years, and the younger children for a year and a half.

 

Eventually, CP applied for permission to invoke the English family court’s “inherent jurisdiction” to intervene in the case, meaning its natural legal authority in family matters. Because same sex relationships were not legal in the Middle Eastern country, she could not apply for time with the children in the courts there- but the children had all been born in the UK, so without an intervention by the English courts, “she would therefore have no other means of having her parental rights determined and of exercising them”.

 

CP’s case failed in the High Court, which ruled that she was not the legal parent of the younger children. But the Court of Appeal reached a different conclusion.

 

There, Lord Justice Jackson allowed CP’s appeal, on the basis of section 42 of the Human an Embryology Act. He explained:

 

“Where no issue is brought before a court, the spouse or civil partner of the gestational mother will be the parent of a child born after assisted reproduction [fertility treatment] in consequence of the statutory presumption of parenthood.”

 

But, the Judge continued, when a dispute occurs, under the HFEA the court should ask itself:

 

“…’Has it been shown on the balance of probabilities that the spouse or civil partner did not consent to the assisted reproduction that was undertaken?’…This question is the only one that must be answered in order to determine whether an individual is to be treated as the child’s legal parent.”

 

Addressing the issue of the earlier High Court ruling, Lord Justice Jackson explained:

 

“I acknowledge that the judge heard the evidence but …the detail of the evidence may have distracted him from what I have described as the big picture. The only proper conclusion is that it has not been shown that CP did not consent to the assisted reproduction procedures undertaken by M, and I would substitute a finding that she consented. I would therefore allow the appeal on Ground 1 and declare that CP is to be treated as a legal parent of the younger children, and that the Registrar General is to be so notified.”

 

Jeremy Ford, one of the partners here at Cambridge Family Law Practice, notes that this case “has brought a sensible conclusion to uncertainty caused by the law effectively just catching up with itself.”

 

The full judgement – Re S (Children: Parentage and Jurisdiction) – is available to read here.