In a society where there have been significant developments in same-sex relationships, how can it be right that this mother has been left without any court in the world to make a child arrangement order application to see her children? Estella Newbold-Brown analyses an extraordinary case (R v T) where the decision made has far-reaching implications for children of same-sex families living around the world.
Whilst everyone was preparing for Christmas at the beginning of December last year, a judgment was handed down at a remote hearing which was circulated to the parties by email. This judgment related to a 5-day hearing before Mr Christopher Hames QC sitting as at Deputy High Court Judge.
It is worth noting that counsel for the Applicant (Mr Will Tyler KC and Ms Jennifer Lee) were acting on pro bono basis. One can see that this was quite possibly driven due to the highly complex and extraordinary nature of this case which raises important jurisdictional and human rights issues. Judge Hames was to consider preliminary issues of jurisdiction relating to an application brought by the Applicant who was in a same-sex relationship. The relevance of this will become clearer later on.
The Applicant and Respondent
The Applicant and Respondent were in a civil partnership from November 2006 until June 2016. Child A was born on 6 April 2009 (this date is relevant when looking at the relevant fertility legislation) and a number of other children were born after that date but during the period of the parties’ civil partnership. All of the children, save for A, were living in the UAE with the Respondent when the application was made, the Respondent having moved to the UAE in December 2014. Arrangements for contact between the Applicant and the children were agreed between the parties and a parental responsibility agreement had already been entered into between the parties for child A. Child A remained living in England and was attending boarding school during these proceedings but was not habitually resident in England.
The key question in this case was whether the English court had jurisdiction to consider the application made by the Applicant for a child arrangement order in respect of A and the other children. These children were born through artificial insemination in America using a sperm donor. The HFEA (Human Fertilisation and Embryology Act) 2008 came into force for children born on after 6 April 2009. As child A was born before this date, then this provision was not relevant to him. It did apply to all of the children born to the parties after that date, and the key provision in section 42 reads as follows:
Women in civil partnership or marriage to a woman at time of treatment
- If at the time of placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership with another woman or a marriage with another woman, then subject to section 45(2) to (4), the other party to the civil partnership or marriage is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).
- This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1).
During the proceedings it became clear that the Applicant had not been fully involved with the Respondent during her fertility treatment, but the Applicant’s case was that she at all times consented to the Respondent’s treatment. Documentation was provided by the clinic which showed that, although the Respondent had been named as the patient undertaking treatment (apparently as a single person), the Applicant was present at the birth of Child A and some of the younger children but was not able to attend the birth of the two youngest children as she was in the USA visiting her dying father. The Respondent’s position was that they entered into a civil partnership to enable the Applicant to be able to participate in the 2012 London Olympics and the nature of their relationship was largely platonic rather than emotional. The Applicant was not named as a parent on any of the children’s birth certificates, but Child A was registered with a hyphenated surname (using the Applicant’s surname) and the younger children had the Applicant’s surname registered as their middle names.
After considering the evidence, the Judge felt that there was no clear evidence that the Applicant had either positively objected to the fertility treatment of the younger children or that she had clearly consented to it for the purposes of the HFEA. Instead, the Judge concluded that all of the children were to be treated as “a child of the family” within the matrimonial jurisdiction in the Family Law Act 1986. Some of the primary reasons for this were:
- the parties entered into a parental responsibility agreement for A;
- on the Applicant’s evidence she was able to show that they were all a family and the Applicant effectively played the role of a step-parent (not a best friend as the Respondent inferred);
- the children were given the Applicant’s surname;
- a video was shown of the children’s baptism in 2014 which displayed them as a family unit;
- the Judge found that the Respondent would not have agreed to extensive arrangements with the children to spend time with the Applicant had she not been a significant person in their lives.
Despite the Applicant’s significant role in the children’s lives, the Court found that the English Court had no jurisdiction to consider the application brought by the Applicant for a child arrangement order in respect of the younger children. The only jurisdiction the Court had was in respect of Child A as he was “present” in England and Wales when the applications were made. His presence enabled the Court to entertain the application for a child arrangement order in respect of him under section 2(1)(b) and 3(1)(b) of the FLA 1986.
The fundamental peg for the acquisition of the Court’s jurisdiction under the Family Law Act 1986 is the child’s habitual residence at the relevant time an application was made, in line with Article 5 of the 1996 Hague Convention. There is also jurisdiction based on a child’s presence at the relevant time (as was the case concerning A) or under the matrimonial jurisdiction under section 2A of the FLA 1996, which requires the court to find that there was some connection between the applications and the earlier proceedings dissolving the civil partnership.
The Court in this case held that as the younger children were habitually resident in the UAE, and there were no other routes to establish jurisdiction, then the English Court had no jurisdiction over the younger children. The Court reached this conclusion despite the Applicant being unable to pursue any child arrangement order applications in the UAE, where same-sex relationships are criminalised, and same-sex parenting is not recognised.
Mr Tyler KC and Ms Lee urged the Court to take a broad and purposive approach, in line with the Applicant’s and the children’s ECHR rights, and to ‘read down’ the phrase ‘in connection with’ in respect of the matrimonial jurisdiction so that the children were not left in ‘legal limbo’. The Court declined to do so.
The outcome of this case is profound and has left the Applicant being completed suspended of any contact with her children and no forum in the world available to investigate or determine the children’s welfare.
What does this say for the rights of English children of same-sex parents living around the world, and the rights of their parents, under Article 8 (private and family life) and Article 14 (non-discrimination)? Should a broader and more purposive approach be adopted when the Courts consider the jurisdictional grounds under English law? This decision has far-reaching implications for children of same-sex families living around the world.
Judgment in full – R v T – Case Law (The National Archives)
About the Author
Estella Newbold-Brown is a partner at Amphlett Lissimore and head of the family law department. Estella specialises in all areas of private family law and can advise in respect of children matters, whether this relates to contact disputes, financial claims for children, abduction or relocation cases.