P v Q and F (Child: Legal Parentage)

This appeal concerned the legal parentage of a six-year-old child (X) born to P (gestational and genetic mother) following a mixed conception context in which P underwent artificial insemination using sperm provided by F while also engaging in natural intercourse with F during the conception window. The primary legal questions were whether the Human Fertilisation and Embryology Act 2008 (in particular ss.34, 42 and 45) applied (so that Q, the non-gestational female spouse, would be treated as the child’s legal parent) and where the burden of proof lay when the method of conception was unclear.

The court held that the statutory parentage scheme in the HFEA 2008 applies only where the foundational condition in s.34 is satisfied (that the child was conceived by assisted reproduction). If that condition is not established, common law parentage (genetic and gestational parenthood) governs. The Family Law Act 1986 (ss.55A and 58) authorises declarations of legal parentage; section 58 requires the court to make a declaration where it is satisfied of the legal proposition. Here the judge found (factually) that natural insemination had occurred and that it was impossible to determine whether conception resulted from artificial insemination or natural insemination. The court concluded that, because the statutory gateway in s.34 was not established, the HFEA regime did not apply and F, as genetic father, is X’s legal parent. The appeal was dismissed.

Background and facts:

• P (the appellant mother) and Q (her former wife) arranged for F to provide sperm; on three occasions F provided sperm used for artificial insemination of P. Unbeknown to Q, P and F also had natural intercourse on three occasions during the same period. X was conceived during the third occasions of AI and NI and it was impossible to determine which method caused conception. X was registered at birth with P and Q as parents.
• After the separation and divorce of P and Q, P applied under section 55A of the Family Law Act 1986 for declarations that F is X’s legal father and that Q is not X’s legal parent. The judge found NI had occurred and that it was not possible to be satisfied on the balance of probabilities that conception was by AI; she therefore declared that Q is not X’s legal parent and that F is the legal father. Q appealed only on the ground that the judge misdirected herself as to the burden of proof.

Procedural posture:

• Appeal from the High Court (Family Division), Mrs Justice Gwynneth Knowles (reported as P v Q and Others [2024] EWFC 85 (B) (Fam)). The appeal was heard in the Court of Appeal on 18 July 2024 and disposed of on 26 July 2024.

Nature of claim/application:

• An application for declarations of parentage under Part III of the Family Law Act 1986 (section 55A), with the court required to make declarations where satisfied of the truth of the legal propositions (section 58).

Issues framed by the court:

1. Whether the HFEA 2008 parentage scheme (ss.34, 42, 45) applied (i.e. was the child born as a result of assisted reproduction), and if so whether Q was to be treated as a parent unless it was shown she did not consent to the assisted reproduction.
2. On whom lay the evidential burden of proof when the method of conception (AI versus NI) was unclear.
3. Whether the judge should have refused to hear the application on welfare grounds (s.55A(5)).

Court’s reasoning and decision:

• The Court of Appeal agreed with the judge that the HFEA parentage provisions apply only where the foundational gateway in s.34 (that the child was born as a result of assisted reproduction) is satisfied. If that foundation is not proved, common law parentage (gestational mother and genetic father) applies.
• The court analysed the role of section 58 FLA 1986 and held it concerns the truth of the legal proposition to be declared, not by importing a separate statutory factual burden into s.55A. The judge correctly approached factual issues by usual fact-finding: P bore the burden of proving F’s genetic paternity and that NI occurred; Q bore the burden of showing the case fell within the HFEA footprint so as to retain her statutory parentage. The judge had found NI occurred and that it was impossible to determine on the balance of probabilities that conception was by AI; therefore s.42 did not apply and the common law position prevailed.
• The appeal was dismissed. The court noted this is an unusual case because the outcome turned on evidential burdens where alternative modes of conception were both possible and credible; welfare matters were dealt with and the judge’s subsequent orders left all three adults with parental responsibility for X.

This was an appeal against declarations of parentage. The Court of Appeal dismissed the appeal. It held that the HFEA 2008 parentage provisions apply only where the statutory gateway in s.34 (that the child was conceived by assisted reproduction) is established; if that foundational condition is not proved the common law position (gestational mother and genetic father as legal parents) applies. Because the judge found that natural insemination had occurred and it was impossible to be satisfied on the balance of probabilities that conception was by artificial insemination, the HFEA regime did not apply and F, as genetic father, is the child’s legal parent; Q is not the legal parent. The judge’s factual findings and legal approach were upheld.

Appeal from the High Court of Justice, Family Division (Mrs Justice Gwynneth Knowles), ZW23P01329; first instance judgment reported as P v Q and Others [2024] EWFC 85 (B) (Fam). Permission to appeal was granted on a single ground and the Court of Appeal dismissed the appeal on 26 July 2024 ([2024] EWCA Civ 878).