J v C & Anor

For statutory parenthood following artificial insemination, the applicable legislation is determined by the date of insemination, rather than whether the child continued to be carried after the successor legislation commenced.

Under section 27 of the Family Law Reform Act 1987, a marriage means a union between a woman and a man. A woman who purported to marry the child-bearing woman could not therefore be the other party to a marriage or be treated as the child's father. A subsequently acquired male gender does not alter that historical position.

The appellant and the child's mother went through a ceremony of marriage while the appellant was legally female. The mother, who did not know that fact, later conceived the child through artificial insemination by donor. The ceremony was subsequently declared void.

In proceedings under Part II of the Children Act 1989, Hedley J declared that the appellant was not the child's parent for the purposes of section 10(4)(a), required leave to seek section 8 orders, and refused leave after the mother gave an undertaking concerning professional advice about informing the child of her origins.

The appellant appealed the declaration. The central issue was whether section 27 of the Family Law Reform Act 1987 treated the appellant as the child's parent following artificial insemination.

1. Appeal dismissed. Although Hedley J had considered the wrong statutory scheme, his declaration that the appellant was not, and never had been, the child's parent was correct. Wall LJ gave the leading judgment. Richards and Thorpe LJJ agreed.
2. The applicable legislation was section 27 of the Family Law Reform Act 1987, rather than section 28 of the Human Fertilisation and Embryology Act 1990. Sections 28 and 49(3) of the latter Act made the date of artificial insemination decisive. Since insemination occurred before section 28 commenced on 1 August 1991, it was immaterial that the child continued to be carried after that date.
3. Section 27 of the 1987 Act applied only where the child-bearing woman and the other party were parties to a marriage in the sense of a union between a woman and a man. The statutory inclusion of certain void marriages did not convert a ceremony between two women into a marriage for this purpose. References to a marriage in section 11(c) of the Matrimonial Causes Act 1973 were convenient shorthand for a purported ceremony. Accordingly, a person who was legally female at the time could not be the other party to the marriage or be treated as the child's father.
4. The appellant's later gender recognition certificate made him male for subsequent legal purposes, including marriage. It did not operate retrospectively, validate the earlier ceremony, or rewrite his gender at the time of the ceremony and insemination.
5. Convention rights did not require a different construction. There was no relevant family life between the appellant and the child, whom he had not seen for many years and with whom he sought no contact. Giving effect to his historical legal gender did not interfere with respect for his subsequently acquired male gender or private life. Articles 6 and 14 were also not engaged, and section 3 of the Human Rights Act 1998 did not arise.
6. Wall LJ further considered that directing what a parent should tell children about their origins was not ultimately justiciable through section 8 orders. The mother had undertaken to obtain appropriate professional advice. The refusal of leave was therefore correct, although it was not formally within the appeal.

1. Court of Appeal (Civil Division): The appeal was dismissed. The declaration that the appellant was not a parent within section 10(4)(a) of the Children Act 1989 was upheld, although the Court held that section 27 of the Family Law Reform Act 1987, rather than section 28 of the Human Fertilisation and Embryology Act 1990, governed the case.
2. High Court, Family Division: Hedley J declared that the appellant was not the child's parent, held that leave was required to seek section 8 orders, and refused leave after accepting the mother's undertaking. No citation is stated in the judgment.