The Court of Appeal’s decision in determining the legal parent in a same-sex relationship has been described as a ‘historic win’ which has ‘opened the door on a new chapter in international family law’.

The judgment in Re S (Children: Parentage and Jurisdiction) said 'CP' should be treated as a legal parent of children now resident in the Middle East. 

The case, before Lady Justice King, Lord Justice Moylan and Lord Justice Peter Jackson, centres on the children, all British citizens born in the UK, who were conceived by fertility treatment and now are habitually resident in a Gulf state. CP and M were civil partners in 2006 and after M gave birth they entered into a parental responsibility agreement for their eldest child. CP was present at all the births bar one. The women later married other partners.

In the case, CP issued an application seeking permission to invoke the court’s inherent jurisdiction stating ‘she would therefore have no other means of having her parental rights determined and of exercising them’ as same-sex relationships in the state are illegal. However the High Court found that CP was not the parent of the younger children. 

Allowing the appeal in accordance with S42 of the Human Fertilisation and Embryology Act 2008, Lord Justice Peter Jackson declared CP the legal parent, saying the ‘detail of the evidence may have distracted’ the judge in the lower court from the ‘big picture’ .

He said: ‘Where no issue is brought before a court, the spouse or civil partner of the gestational mother will be the parent of a child born after assisted reproduction in consequence of the statutory presumption of parenthood.

‘Where an issue is raised, the court must give effect to the statutory wording by asking itself the 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?”’

He found the judge’s conclusion about legal parentage of the younger children was ‘not sustainable’ because of the error in narrowing the statutory test, a failure to give ‘any real weight to a number of compelling aspects of the evidence’, and the ‘undue reliance’ on several matters that ‘were of no or limited relevance to the issue of consent’.

In this case, 'it has not been shown that CP did not consent to the assisted reproduction procedures undertaken by M, and I would substitute a finding that she consented'.

Also allowing the appeal, Lord Justice Moylan said the ‘the courts of England and Wales have jurisdiction to entertain CP’s applications and to make…orders in respect of the children, including those who are not present in England and Wales’.

Alexandra Tribe, partner and founder of Expatriate Law, who acted for CP, said the judgment meant ‘the English court is now much more likely to be able to assist’.

She added: ‘This is one of the most important family law decisions in the last year. The law on whether someone is a parent and how children based abroad can still receive English family law justice have both been clarified, simplified and made far more accessible generally.

‘We are delighted to have achieved parental status for someone who absolutely deserves it and to whom it means the world and that the English Court have accepted jurisdiction over the four children living in the Middle East.’

Byron James, partner and head of Expatriate Law’s UAE office added: ‘With this historic win in the Court of Appeal, we have not only secured justice for our client but also opened the door on a new chapter in international family law.' 

 

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