S (Children: Parentage and Jurisdiction), Re

Under Human Fertilisation and Embryology Act 2008, the female spouse or civil partner of a gestational mother is presumed to be a legal parent following assisted reproduction. That status prevails unless absence of consent to the procedure is proved on the balance of probabilities. Consent is a fact-sensitive state of mind. It may be express, implied or unarticulated and need not result from a discrete exercise of choice.

Where the 1996 Hague Child Protection Convention gives no Contracting State jurisdiction, domestic jurisdiction applies. A child application is connected with earlier matrimonial or civil partnership proceedings when the statutory connecting requirements are met. No additional temporal, factual or causal connection is required.

CP and M were civil partners. M conceived several children through assisted reproduction. After the family moved abroad and CP’s contact with the children diminished, CP applied in England for child arrangements orders and permission to invoke the inherent jurisdiction.

A deputy High Court judge held that CP was not the legal parent of the younger children, although all the children were children of the family. He found jurisdiction only in relation to the eldest child and dismissed or stayed the other proceedings.

CP appealed. The issues were whether the statutory presumption of parenthood under section 42 of the Human Fertilisation and Embryology Act 2008 had been displaced and whether sections 2(1)(b)(i) and 2A of the Family Law Act 1986 conferred jurisdiction despite the children’s habitual residence abroad.

1. Appeal allowed on parentage and jurisdiction. CP was to be treated as the legal parent of the younger children. The courts of England and Wales had jurisdiction to entertain her applications concerning all the children.

2. Section 42 of the Human Fertilisation and Embryology Act 2008 creates a rebuttable presumption of parenthood, rather than a presumption of consent. The statutory status prevails unless it is proved on the balance of probabilities that the spouse or civil partner did not consent to the assisted reproduction undertaken. The presumption does not fall away merely because some evidence against consent is produced.

3. Consent is determined objectively as a question of fact in all the circumstances at the time of the procedure. It may be written, oral, express, implied or unarticulated. It need not be communicated, confined to a particular procedure, or formed through a decisive exercise of choice. Awareness and acquiescence are not themselves consent, but a court must distinguish mere acquiescence from consent that was never expressly stated.

4. The deputy judge had erroneously narrowed the inquiry to whether CP had made a deliberate exercise of choice. He consequently failed to give proper weight to the parties’ civil partnership, their shared wish for children, CP’s participation and her later integration into the children’s lives. He also gave undue weight to differences in the parties’ knowledge and involvement. The only proper inference was that absence of consent had not been proved.

5. The 1996 Hague Child Protection Convention is the first source of jurisdiction. Where it gives jurisdiction neither to England and Wales nor to another Contracting State, sections 2 and 2A of the Family Law Act 1986 apply. Those domestic rules are not confined to intra-United Kingdom cases.

6. For section 2(1)(b)(i), the required connections are exhaustive: the parties are or were the child’s parents, including through child-of-the-family status; qualifying proceedings took place in England and Wales and were not dismissed; and a parent seeks a section 1(1)(a) order. No additional temporal, factual or causal nexus is required. The Registrar General was to be notified of the declaration of parentage.

1. Court of Appeal (Civil Division): The appeal was allowed. The court substituted a finding that CP consented to the assisted reproduction, declared her a legal parent of the younger children, and held that the courts of England and Wales had jurisdiction concerning all the children.
2. High Court (Family Division): Christopher Hames KC, sitting as a deputy High Court judge, held that CP was not the legal parent of the younger children but that all the children were children of the family. He dismissed the proceedings concerning the younger children and stayed those concerning the eldest child. No neutral citation was stated.