S v D & E

When a biological father seeks leave under section 10 of the Children Act 1989 to apply for a section 8 order concerning a child conceived by artificial insemination while the birth mother was in a civil partnership, the legal-parenthood provisions and policy of the Human Fertilisation and Embryology Act 2008 are relevant considerations. They do not create an automatic bar to leave. The court must consider all relevant circumstances, including the section 10(9) factors, the merits and the applicant’s connection with the child. The approach is fact specific. Genetic parenthood and an established social or psychological relationship may remain significant despite the absence of legal parenthood. Leave may be granted for contact while being refused for residence, and leave does not determine whether substantive contact orders will ultimately be made.

The judgment concerned two linked applications for leave to apply under section 10 of the Children Act 1989. S sought leave to apply for contact and residence-related relief concerning G, a child conceived using S’s sperm by E while E was in a civil partnership with D. T sought leave to apply for contact concerning Z, conceived using T’s sperm by X while X was in a civil partnership with Y.

Under the Human Fertilisation and Embryology Act 2008, D and X’s civil partners were legal parents and S and T were not to be treated as fathers. Both applicants nevertheless had biological links and had enjoyed periods of regular contact with the children. The central questions were whether the applications were arguable, whether the children’s lives might be disrupted or harmed, and what weight should be given to the statutory policy concerning same-sex families.

1. Re-hearing of S’s application. An order granting leave under section 10 was a case-management order, not a final order determining the substantive proceedings. Rule 4.1(6) of the Family Procedure Rules 2010 permitted it to be set aside where new material had not been considered and doing so was required by the overriding objective. The order of 22 November 2012 was therefore set aside so that both linked applications could be considered together.
2. Statutory framework. Section 10(9) does not prescribe a fixed test or exhaustive criteria. The court must consider all material features, giving particular regard to the nature of the proposed application, the applicant’s connection with the child and the risk that the application might disrupt the child’s life so as to cause harm. The merits and whether there is an arguable case are relevant, but an arguable case is not necessarily sufficient. Leave does not create a presumption that a substantive order will follow, and the court may limit the proceedings at an early stage.
3. Effect of the 2008 Act. Sections 42, 45 and 48 of the Human Fertilisation and Embryology Act 2008 made the civil partners the legal parents and excluded the biological fathers from legal parenthood. The policy was to place lesbian couples and their children in the same legal position as other parents and children. That policy was a material consideration, but it did not prevent the legal parents from facilitating contact or enabling a biological father to become a psychological parent. Genetic and psychological parenthood were not automatically extinguished by the removal of legal parenthood.
4. Application. S and T were not legal fathers, but neither was a stranger to the relevant child. Their biological links, the regular contact permitted by the respondents, and the circumstances in which they had been selected as donors provided arguable connections. The likely disruption and stress were relevant, but on these facts did not outweigh the other considerations. Both applicants had a good arguable case for some form of contact. T’s request for alternate-weekend unsupervised contact was unrealistic, but that did not justify refusing leave altogether. S’s proposed residence application was disproportionate and risked undermining the family unit.
5. Leave was granted to S and T to apply for contact orders concerning G and Z respectively. S was refused leave to apply for a residence order. The grant of leave did not determine whether contact would be ordered, its frequency, or the scope of any substantive proceedings.