Same-Sex Parents & International Contact Arrangements – Landmark Court Of Appeal Decision In Re S (Children: Parentage and Jurisdiction)

A recent Court of Appeal decision in the case of S (Children: Parentage and Jurisdiction) has highlighted hugely significant legal considerations in relation to parental determination and jurisdiction in family law cases involving same-sex civil partner parents and international child contact arrangements.

S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897

Background

The case concerned five UK-born children, who were born between 2008 and 2013. The children now reside in a Gulf State.

The parties involved in this case were the biological and gestational mother of the children (the Respondent). The other party to the proceedings (the Appellant) was the civil partner of the Respondent at the time the children were born. However, they were not named on the children’s birth certificates. All five children had the same genetic father by virtue of sperm donation.

The Respondent and Appellant’s civil partnership ended in 2016. Before the civil partnership had been dissolved, the five children relocated with the Respondent to a Gulf State. The Appellant stayed in England but kept in contact with the children. However, this gradually reduced from 2019 onwards.

A Court application was made in England by the Appellant for a child arrangements order in February 2022. Within the application, the Appellant claimed that due to her status as a same-sex parent she was unable to make an application to the Gulf State Courts, where same-sex relationships are criminalised. Additionally, non-biological, same-sex parents are not recognised as parents in the Gulf State and have no legal standing to make Court applications in respect of child contact or other aspects of parental responsibility.

The English Courts had to consider two important, yet different, legal issues in this case:

High Court’s decision

In November 2022, the case came before Christopher Hames KC, sitting as a Deputy High Court Judge. On 2^nd December, he handed down a reserved judgement, which stated that:

The decision was appealed by the Appellant and the case proceeded to the Court of Appeal.

Court of Appeal decision

In respect of the first issue, whether the Appellant is a legal parent of the five children, the Courts had to interpret and apply Section 42 of the Human Fertilisation and Embryology Act 2008. Specifically, the Court considered the issue of ‘consent’ and what test should be applied to clarify whether a civil partner of the gestational mother is a legal parent.

The High Court ruled that there was no proof that the Appellant had objected to the treatment, or that she had clearly provided consent. It was primarily because there was no evidence which showed that there was a deliberate exercise of choice by the Appellant in respect of the fertility treatment.

However, the Court of Appeal ruled in favour of the Appellant on this point. It commented that existing case law had deviated too far from the legislation. It was held that in cases such as this, the Court must first give consideration to the legislation by considering:

Despite there being no written consent from the Appellant, the Court of Appeal deemed that the Appellant’s involvement in the selection of the sperm donor and attendance at the birth was evidence of consent.

With regard to the subject of jurisdiction, the Court of Appeal once more disagreed with the High Court’s ruling. This issue centred on ss. 2(1)(b)(i) and 2A(1) of the Family Law Act, specifically the meaning of: “in or in connection with matrimonial proceedings” in s. 2(1)(b)(i). The Court of Appeal decided that the Appellant’s case fell within the scope of the Family Law Act and subsequently the English Courts had jurisdiction to consider the child contact application from the Appellant despite them not living or being habitually resident in England.

As a result of this ruling, the Appellant will now be able to proceed with her application in the English Courts.