P v Q and F (Child: Legal Parentage)

A child’s legal parents are ordinarily the gestational mother and genetic father. That common law rule is displaced by the statutory scheme for assisted reproduction only when its foundational conditions are established.

Where a mother’s female spouse relies on section 42(1) of the Human Fertilisation and Embryology Act 2008, she must establish that the child was born as a result of assisted reproduction. Section 42 creates a rebuttable presumption of parenthood, not a presumption about consent or the method of conception.

On an application under section 55A of the Family Law Act 1986, section 58(1) concerns the truth of the legal status declared. It does not impose a burden of proving every underlying fact upon the applicant.

X was conceived during a period when her gestational mother, P, underwent artificial insemination using sperm supplied by F and also had sexual intercourse with him. Scientific testing established that F was X’s genetic father, but it was impossible to determine which method caused conception. P’s then wife, Q, was registered as X’s second parent.

The High Court, in P v Q and Others [2024] EWFC 85 (B) (Fam), declared that F was X’s legal father and Q was not her legal parent. The judge held that the statutory provisions governing assisted reproduction were not engaged because Q could not establish that X had been conceived by artificial insemination.

Q appealed on the sole permitted ground that the judge had misallocated the burden of proof. She contended that P had to prove natural conception before the court could displace Q’s registered parental status.

1. Appeal dismissed. The declarations that F was X’s legal father and that Q was not her legal parent were correctly made.

2. Section 55A of the Family Law Act 1986 empowers the court to declare whether a named person is or was a child’s legal parent. The court must determine the relevant facts and then apply the law. Section 58(1) addresses the truth of the resulting legal proposition, rather than imposing a burden of proof concerning all underlying facts. Once satisfied about legal parentage, the court must make the declaration unless that would be manifestly contrary to public policy. Section 58(3) is a due-process provision preventing the court from making an unrequested declaration.

3. The common law starting point is that the gestational mother and genetic father are the child’s legal parents. This is a principle of law, rather than an evidential presumption. It applies unless displaced by legislation governing assisted reproduction or another applicable rule.

4. Sections 34(1) and 42(1) of the Human Fertilisation and Embryology Act 2008 are founded on the child having been born as a result of assisted reproduction. P had to prove that F was the genetic father and that natural insemination occurred during the conception window. Once she did so, Q had to establish that the case fell within the statutory scheme by showing that conception resulted from artificial insemination. As the two possible methods were equally likely, Q did not discharge that burden.

5. Section 42(1) creates a rebuttable presumption of parenthood, not a presumption of consent or of artificial conception. If assisted reproduction is not established, the section is simply not engaged. The High Court’s contrary statements about those presumptions were erroneous but inessential to its conclusion.

6. Birth registration is practical and prima facie evidence of parentage, but it neither creates parental status nor gives rise to a legal presumption. Once parentage was disputed, it had to be determined from the facts and applicable law. Policy considerations arising from Q’s commitment to the child could not alter the statutory analysis, although the family court retained extensive welfare powers.

• Court of Appeal (Civil Division): By [2024] EWCA Civ 878, unanimously dismissed Q’s appeal and upheld the declarations of legal parentage.
• High Court, Family Division: In P v Q and Others [2024] EWFC 85 (B) (Fam), declared that F was X’s legal parent and Q was not her legal parent, and directed notification of the Registrar General.