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A groundbreaking Court of Appeal case has overturned a High Court decision which denied parental status to a same-sex parent and declined jurisdiction for the court to determine arrangements for children living in a country that does not recognise their non-biological same-sex parent.
In the case of Re (S) (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897, the Court of Appeal has provided clarity for cases involving LGBTQ+ families and questions about parental status and jurisdiction for child arrangements in cases where children are residing in a country where LGBTQ+ relationships are criminalised.
Background
The case concerned five children, all British citizens born between 2008 and 2013, who were conceived by fertility treatment to a same-sex couple. The children share the same genetic father from a sperm donation. The Appellant, the non-gestational parent, was not named on the birth certificate.
The Appellant (CP) and Respondent (M) became civil partners in 2006. Their civil partnership was dissolved in 2016. In 2014, the Respondent moved to a Gulf State with the five children. The Appellant remained in contact from the United Kingdom, although this was reduced from 2019. In 2022, the Appellant applied for a Child Arrangements Order in the English court, recognising that she could not apply to the court in the Gulf State due to same-sex relationships being illegal within that state, and a non-biological same-sex parent of a child not being recognised as a parent, meaning an application in relation to contact or parental responsibility would not be recognised.
Court of Appeal
The Court of Appeal had to consider two issues.
Firstly, whether CP could be recognised as a legal parent of the children. Section 42 of the Human Fertilisation and Embryology Act 2008 states that if the parties were married or in a civil partnership during the fertility treatment, then they would be recognised as a legal parent, unless consent was not given to the treatment.
Secondly, whether, under the Family Law Act 1986, the court of England and Wales could be deemed to have jurisdiction to make decisions about the children’s welfare.
Whilst the High Court ruled that CP was not a legal parent due to insufficient evidence surrounding consent, the Court of Appeal instead took a broader, open approach when they came to define consent, and said that the High Court had moved too far away from the original statutory wording
The Court of Appeal acknowledged that consent can be both explicit and inferred from circumstances, recognising the significance of CP’s attendance at the children’s births and contributions to the family and treating the children as her own, all of which ultimately contributed to the recognition of the Appellant as a legal parent.
Again, considering jurisdiction, the Court of Appeal took a broader approach than the High Court has taken historically, recognising that the application fell within section 2(1)(b)(i) of the Family Law Act 1986, namely it was “in connection with matrimonial proceedings. This meant that the court was able to consider the application, even though the children live abroad and so are not considered to be habitually resident in England and Wales
Comments
This landmark case has provided further guidance on some of the complexities of modern family life and the law, involving same-sex parents, fertility treatment and parentage, coupled with the complications of a multi-jurisdictional case where the other country in question did not legally recognise one parent’s relationship to the children.
Recognising the Appellant as the children’s legal parent ensures that the children’s relationships with both parents are protected, providing them with security and a sense of stability. Securing the jurisdiction of the English court means that a country that recognises their parents’ same-sex relationship is able to make meaningful decisions about their futures, and their relationship with both parents. This would be unlikely to happen in countries such as in the Gulf where local laws do not recognise LGBTQ+ relationships (in turn, preventing a non-gestational parent from making an application for contact with their children).
Moreover, the ruling’s recognition of the importance of the non-gestational parent is a welcome addition, demonstrating that LGBTQ+ parents should, and will, be treated equally within English law.
The laws surrounding separation of LGBTQ+ couples, particularly in relation to arrangements for their children, can be particularly complex. It is important for LGBTQ+ couples to seek early advice from a family lawyer when planning to start a family, to ensure that their intentions are properly reflected at the time and that they understand, and protect against, potential complications that may arise in the event of a future separation.
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