D (A Child), Re

A court must satisfy itself that it has jurisdiction; jurisdiction cannot be founded solely on the parties’ concession. Where parentage under the Human Fertilisation and Embryology Act 1990 is uncertain, the issue may require determination notwithstanding the parties’ agreement.

In welfare proceedings, a judge may indicate that direct contact should be deferred while relationships settle, provided the indication is not an order restricting future applications. Parental responsibility may likewise be deferred where the father has had no direct relationship with the child and no immediate forum in which to exercise it, if appropriate safeguards preserve his position.

The applicant had undertaken fertility treatment with the mother and was treated under the Human Fertilisation and Embryology Act 1990 as the child’s legal father, although he was not the biological father. The treatment had been unsuccessful, the couple separated, and the mother later gave birth following implantation using embryos created during the earlier treatment.

At first instance, His Honour Judge Hedley considered contact and parental responsibility but not jurisdiction. He directed indirect contact, indicated that direct contact should not be seriously contemplated before the child was about three, and adjourned the application for parental responsibility generally.

The applicant sought permission to appeal. The central issues were whether the contact indication was excessive, whether parental responsibility should have been granted immediately, and whether the court could properly proceed on the parties’ concession that he was the father.

1. Permission refused. The applications concerning contact and parental responsibility disclosed no arguable error in Judge Hedley’s careful welfare assessment.
2. The indication that direct contact should not ordinarily be pursued until the child was around three was not a section 91(14) restriction imposed by the back door. It was guidance based on the mother’s fragility, the need to calm the situation, the practical difficulty of meaningful contact while the child remained closely dependent on her mother, and the desirability of a non-adversarial approach. The indication did not prevent a renewed application if circumstances changed.
3. Parental responsibility was properly deferred. The applicant had potential commitment and genuine motives, but had no attachment to the child and no immediate forum in which to exercise parental responsibility. The judge was entitled to balance those matters against the child’s welfare and to preserve the applicant’s position by allowing reinstatement without a time limit and requiring notification of relevant proceedings. An adoption application would also require restoration of the application for parental responsibility.
4. The court expressed substantial concern about jurisdiction. Under sections 28(3) and 29 of the Human Fertilisation and Embryology Act 1990, the applicant’s status depended on the statutory circumstances of the treatment. Those circumstances were not properly investigated. Jurisdiction cannot be founded on a concession, and the issue could affect the child, the parties and third persons. The application was therefore treated de bene esse, without deciding whether section 28(3) applied.
5. The anonymised judgments were directed to be sent to the Human Fertilisation and Embryology Authority. There was no order for costs, save legal aid assessment.

• Court of Appeal (Civil Division) — Applications for permission to appeal from the order of His Honour Judge Hedley were refused.
• Liverpool District Registry — On 20 September 2000, Judge Hedley directed indirect contact, indicated that direct contact should generally be deferred until the child was about three, and adjourned the parental responsibility application generally.