R v T

The statutory presumption that a civil partner consented to fertility treatment is not displaced by general awareness or acquiescence, but requires a deliberate exercise of choice. The presumption cannot be used as a makeweight once evidence against consent has been adduced.

A child may be a child of the family although only one civil partner is the child’s legal parent, where both parties have treated the child as part of their family. The matrimonial jurisdiction under the Family Law Act 1986 requires a sufficient factual, temporal, causal or other connection between the application and the dissolution proceedings. The absence of another available forum cannot itself create jurisdiction or justify rewriting the statutory scheme.

The applicant had been in a civil partnership with the respondent during the conception and birth of several children. The respondent was their genetic and gestational mother. The applicant was not registered as a parent, although she had parental responsibility for the oldest child and had played a substantial caring role.

The children lived with the respondent in the UAE and were not habitually resident in England and Wales. The applicant sought child arrangements and inherent-jurisdiction orders, relying on her alleged status as a parent, the statutory concept of a child of the family, the matrimonial jurisdiction under the Family Law Act 1986, the oldest child’s presence in England, and the parens patriae jurisdiction.

The principal issues were whether the applicant was a parent, whether the children were children of the family, and whether the English court had jurisdiction.

1. Parenthood under section 42. The applicant was not a parent of the younger children under section 42 of the Human Fertilisation and Embryology Act 2008. The provision creates a rebuttable presumption of consent where the parties were civil partners at the relevant time. It does not make civil partnership alone sufficient. Consent requires a deliberate exercise of choice. Mere awareness or acquiescence is insufficient, and the presumption cannot be used as a makeweight once evidence against consent is produced. On the evidence, the applicant had neither clearly consented nor positively objected, but had not made a deliberate choice.
2. Child of the family. The applicant was not required to be a legal parent for the children to fall within section 42(4A) of the Family Law Act 1986. The provision extends the matrimonial jurisdiction to children treated by both parties as children of their family. All the children fell within that description. The applicant had acted in a step-parent role, had parental responsibility for the oldest child, had provided substantial care, and had formed part of the family unit.
3. Matrimonial jurisdiction. The court adopted the second approach identified by Poole J in Re A: “in connection with” requires something more than the fact that the parties’ dissolution occurred in England and Wales, but does not require a strict causal or temporal link. The present applications had no sufficient connection with the earlier dissolution proceedings. The court could not add a forum-necessitatis or welfare-based qualification to the statutory scheme, notwithstanding the absence of an available forum in the UAE.
4. Presence jurisdiction. The court had jurisdiction in respect of the oldest child under sections 2(1)(b)(ii) and 3(1)(b) because the child was present in England and Wales on the relevant date and was not habitually resident in the United Kingdom. No additional requirement of immediate protection applied to a section 1(1)(a) order.
5. Parens patriae. The inherent jurisdiction could not be used to evade the statutory restrictions on orders concerning care or contact. The children were not shown to require protection, and the respondent state’s refusal to recognise the applicant’s status did not itself make exercise of the jurisdiction necessary. The applications therefore failed except that the oldest child’s presence-based jurisdiction remained available for further welfare directions.

First-instance preliminary issues determination. The judgment does not state a prior appellate decision in the same proceedings.