Striking decision given by the Court of Appeal over the parental rights of same-sex civil partners

The Court of Appeal handed down the landmark judgment in Re S (Children: Parentage and Jurisdiction) on 27 July 2023. As stated by Byron James, partner at Expatriate Law Limited and instructing solicitors for the successful Appellant:

“With this historic win in the Court of Appeal, we have not only secured justice for our client but also opened the door on a new chapter in international family law,” extracted from an article in the Law Society Gazette.

The Court of Appeal has considered important legal questions about jurisdiction and parentage issues about same-sex parents and foreign child arrangements in this case.

Background

The case involves children who were conceived through artificial insemination and were born in the UK. The children are now residing in a Gulf State along with the Respondent, their biological mother.

The Appellant and the Respondent were civil partners since 2006 and the Appellant was present during the birth of the children between 2008 and 2013. Upon the birth of their first child, both the Appellant and Respondent entered into a parental responsibility agreement however, the Appellant was not named on any of the children’s birth certificates. The civil partnership dissolved in 2016 and during the beginning of 2015, the Respondent moved to the Gulf State with all the children.

The Appellant suffered from having reduced communication with the children and applied to the court for a child arrangements order in February 2022 to solidify her rights as the children’s legal parent.

The appellant further emphasised the fact that as a same-sex parent, she is not entitled to apply for parental rights to the courts in the Gulf State as same-sex relationships are considered illegal there and therefore, the Appellant requested the courts in England and Wales to exercise their jurisdiction under the Family Law Act (FLA) 1986. The Appellant relied on the fact that there had been civil partnership dissolution proceedings in England, and hence she argued that they are related to the child arrangements order application.

The High Court’s Decision

Upon hearing evidence from both parties at first instance, Christopher Hames KC, as Deputy High Court Judge, decided that the Appellant was not the legal parent of the children as he did not consider that the Appellant had consented to the conceiving of the children through artificial insemination after applying the principles of Section 42 of the Human Fertilisation and Embryology Act (HFEA) 2008. He further decided that the courts of England and Wales did not have jurisdiction under the FLA 1986.

The Court of Appeal’s Decision

However, the Court of Appeal accepted the Appellant’s appeal on both grounds and held that:

1) The Appellant was the legal parent of the children and as for the Appellant’s consent, the HFEA 2008 does not have a set of rules which prescribes the method in which consent may be given and that it may be in writing, oral, express or implied from the circumstances in question. Consequently, the High Court ought to have thought about whether consent could be inferred from all the circumstances and that it would be unusual for the Appellant to withhold consent from the Respondent given that they were cohabiting civil partners during the time the Respondent underwent fertility treatment and conceived the children.

2) The Appellant’s case fell within the ambit of section 2(1)(b)(i) of the FLA 1986. Thus, the English Court had the jurisdiction to determine the Appellant’s application for a child arrangements order despite the children not being residents of England and Wales