At 10.30am on 27 July 2023, a judgment was handed down, remotely, in what can only be described as a landmark ruling for same-sex couples. The Law Society Gazette has commented that this is a ‘historic win’ which has ‘opened the door on a new chapter in international family law’. It involved a case where children were born to a couple who were in a same-sex civil partnership and whose children were conceived by fertility treatment, born in the UK, but are now habitually resident in a Gulf state.
LJ Peter Jackson, LJ Moylan and LJ King addressed two important and distinct legal issues in their judgment:
- Whether the Appellant (the non-biological mother) is the legal parent of the children; and
- Whether the English court had jurisdiction to deal with a child arrangement order in respect of the children, made by the Appellant under the Family Law Act 1986, when the children were not habitually resident in England.
I wrote a blog on this case back in February: With no court willing to listen, how can you be heard?, which is useful to read to know the background of what previously happened in this case.
The Court of Appeal
This was an appeal against the decision made by Mr Christopher Hames QC sitting as a Deputy High Court Judge. The Appellant’s status as a same-sex parent prevented her from applying to the court in the Gulf State for any application relating to the children. This is a state where same-sex relationships are criminalised, and where non-biological same-sex parents are not recognised as parents. For that reason, the Appellant had no legal standing to apply to the court there, in respect of contact (formerly known as access or custody) or any other aspects of parental responsibility in respect of the children. The consequence is the decision of the High Court (now successfully appealed) was to prevent the Appellant from being able to apply to the Courts in England & Wales, in circumstances when there was no other forum in the world in which decisions could have been made about the welfare of the children.
In respect of the first issue outlined above, this turned on the interpretation and application of s.42 of the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’). The focus was on the issue of ‘consent’ and the test to be applied to determine whether a spouse/civil partner of the gestational mother is a legal parent or not. LJ Peter Jackson declared the Appellant as the legal parent, saying the ‘detail of the evidence may have distracted’ Hames QC in the High court from the ‘big picture’. He said:
‘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 in consequence of the statutory presumption of parenthood. Where an issue is raised, the court must give effect to the statutory wording by asking itself the question: “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?”’. Court of Appeal Judgment (nationalarchives.gov.uk) (point 44.)
The court found Hames QC’s conclusion about the legal parentage of the younger child ‘not sustainable’ due to the errors he’d made in narrowing the statutory test. In addition to this, Hames QC relied too heavily on matters that ‘were of no or limited relevance to the issue of consent’ and failed to give correct weight to ‘compelling’ evidence.
It was found that consent under the HFEA 2008 does not prescribe the form in which consent can be provided. It can be express or implied from all the circumstances of the case and can be provided orally, in writing or even, unarticulated.
The second important issue that was determined, was the meaning of the word ‘in or connection with matrimonial proceedings’ under section 2(1)(b)(i) and Section 2A(1) of the Family Law Act 1986. The Court of Appeal disapproved the High Court’s interpretation of that statutory provision and found that the Appellant’s case fell within the remit of the statute. For that reason, the English courts have jurisdiction to consider her application in respect of the children, despite them not living in or being habitually resident in England and Wales.
Having succeeded as set out above, this Court of Appeal Judgment is now a leading authority on both points of law.
It is worth noting that all the legal representatives in this landmark case worked on a pro-bono basis. This was praised by LJ Peter Jackson who commented: ‘The way in which the appeal has been prepared and presented reflects credit on the family law community.’ – Court of Appeal Judgment point 2.
About the Author
Estella Newbold-Brown is a partner at Amphlett Lissimore and Head of the Family Law department. Estella specialises in private family law and has followed this case with interest, first blogging about it in February here.