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In disputes arising from informal donor conception, legal parentage depends first on how conception occurred. Sexual intercourse makes the biological father the legal parent; artificial insemination engages the Human Fertilisation and Embryology Act 2008. The statutory scheme applies to unlicensed artificial insemination, and absence of a husband’s consent need not have been communicated to every affected person. If the statutory scheme does not govern the situation, common law continues to operate.

In proceedings concerning children, costs normally follow neither success nor failure. An order requires reprehensible or significantly unreasonable conduct, including in fact-finding cases. Indemnity costs remain exceptional. Restrictions on publicity require a proper balance between Articles 8 and 10; transient publicity with no real welfare effect did not justify a wider order.

Ms M applied for a declaration under section 55A of the Family Law Act 1986 that Mr F was the legal parent of her child. She also sought financial provision under Schedule 1 of the Children Act 1989. Mr F was the child’s biological father. Mr H was Ms M’s husband when the child was born.

The central factual issue was whether conception resulted from artificial insemination or sexual intercourse. If conception was by artificial insemination, the court had to determine the effect of section 35 of the Human Fertilisation and Embryology Act 2008, including Mr H’s consent and whether Mr F would nevertheless be the legal parent. The court also dealt with parental responsibility, disclosure restrictions and costs.

The declaration was granted. The court also determined the ancillary applications.

1. Parentage. Applying the balance of probabilities, the court preferred Ms M’s evidence and found that sexual intercourse occurred at all relevant meetings except the first. The child was therefore conceived by ordinary sexual intercourse. Mr F was both the biological father and the legal parent.
2. Alternative HFEA analysis. The court nevertheless concluded that, if conception had been by artificial insemination, section 35 of the Human Fertilisation and Embryology Act 2008 would require genuine consent. Acquiescence or failure to object would amount to consent only if it represented an inward consent. The reverse burden of proof did not alter the meaning of consent. The absence of consent did not have to be communicated to every affected person. The Act was not an exclusive code governing parentage in every situation: where the facts fell outside its statutory footprint, the common law would continue to apply. Section 35 was not confined to licensed artificial insemination.
3. Disclosure. Rules 12.73 and 12.75 of the Family Procedure Rules 2010 protect information arising from proceedings, but do not prevent discussion of information obtained independently of the proceedings. Balancing Articles 8 and 10, the court refused the wider prohibited steps order. The likely effect of transient publicity on the child and other children was insufficient to justify the proposed restrictions.
4. Costs. The court applied the approach in Re T (Costs: Care Proceedings: Serious Allegations Not Proved) [2012] UKSC 36. In proceedings concerning children, including fact-finding proceedings, costs orders require reprehensible or significantly unreasonable conduct. The fact that a hearing concerns disputed facts does not create an automatic exception. The compartmentalised approach described in Re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350 was not followed. Indemnity costs remained exceptional under Excelsior Commercial & Industrial Holdings v Salisbury Hammer Aspden & Johnson and Ors [2002] EWCA Civ 879 and Re B 2007 EWCA Civ 921.
5. Orders. Mr F was ordered to pay Mr H’s costs on the standard basis. He was also ordered to pay Ms M’s costs incurred from 1 May 2013, with Ms M bearing her earlier costs. The Registrar General was to be notified of the declaration. Re-registration would not itself confer parental responsibility on Mr F, though he could apply for it in future. The Schedule 1 financial application was directed to proceed before a District Judge.