Jennifer Lee and Samara Brackley, led by Will Tyler KC of 36 Family, instructed by Byron James of Expatriate Law Limited, acted in the Court of Appeal for the successful Appellant in Re S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897 – a hugely significant case involving the children of same-sex civil partners, conceived by fertility treatment and born in the UK, and now habitually resident in a Gulf State.

The Court of Appeal (Moylan, Peter Jackson and King LLJ) handed down its judgment on 27 July 2023. The judgment addresses two important, distinct legal issues:

1. whether the Appellant is the legal parent of the children who are the subject of her applications to the English Court; and
2. whether the English Court has jurisdiction under the FLA 1986 to consider applications by the Appellant for a child arrangements order in respect of the children who are not habitually resident in England.

The Appellant’s status as a same-sex parent prevented her from applying to the court in the Gulf State, where same-sex relationships are criminalised, and where a non-biological, same-sex parent of a child is not recognised as a parent and has no standing to apply to the courts in relation to contact or other aspects of parental responsibility.

Whether the Appellant is the legal parent of the children

The first issue turned on the interpretation and application of s.42 of the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’), in particular, as to the issue of ‘consent’ and the test to be applied to determine whether a spouse/ civil partner of the gestational mother is a legal parent or not. The Appellant was successful in persuading the Court of Appeal that case law on this section had strayed too far from the statutory wording. The Court held that, where an issue is raised, the court must give effect to the statute by asking itself this question: “Has it been shown on the balance of probabilities that the spouse or civil partner did not consent to the assisted reproduction that was undertaken?”

The Court observed, amongst other matters, that the HFEA 2008 does not prescribe the form in which consent can be given. It may be in writing, oral or unarticulated, it may be express or implied from all the circumstances. The assessment will be taking place in the presence of a marriage or civil partnership, and will inevitably take account of the nature of the adults’ relationship.

Whether the English Court has jurisdiction under the FLA 1986

The second issue related to ss. 2(1)(b)(i) and 2A(1) of the Family Law Act 1986 (‘FLA 1986’), and in particular, the meaning of the words “in or in connection with matrimonial proceedings” in s. 2(1)(b)(i). The Court of Appeal disapproved of the High Court’s formulation in several previous cases of the approach which should be taken to this issue,  and agreed that the Appellant’s case fell within s. 2(1)(b)(i), and that the English Court therefore had jurisdiction to consider her application regarding the children despite them not being present, or habitually resident, in England and Wales. The consequence of this is that the Appellant will now be able to proceed with her application in the English Court, there being no other court in the world which would be able to assist her and the children.

The Appellant succeeded on both issues, as is set out within the comprehensive judgment of the Court of Appeal, which is now the leading authority on both points of law.

The case has been covered in the Law Society Gazette: ‘Historic win’ in Court of Appeal over same-sex parental rights

Note

Jennifer Lee and Samara Brackley, Will Tyler KC, and Byron James of Expatriate Law Limited, all acted pro bono in the Court of Appeal. Jennifer Lee and Will Tyler KC, instructed by Byron James, also acted pro bono in the court below: https://caselaw.nationalarchives.gov.uk/ewhc/fam/2022/3362.