Private Law
July 2023

24 August 2023
Court of Appeal guidance on the jurisdiction of the court to make declarations of parentage and the circumstances within which such a declaration will be made.
S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897
  • Background – The children, who are all British citizens born in the UK, were conceived by fertility treatment and are now habitually resident in a Gulf State. CP and M met in 2005 and became civil partners in 2006, living together in this country. In 2007, M underwent treatment at a fertility clinic in the United States. A, born in 2008, was conceived by intrauterine insemination. CP was present at the birth. In 2009, M and CP entered into a parental responsibility agreement for A.
  • Section 42 HFEA 2008 created for the first time the possibility of legal parentage for non-biological same-sex female civil partners. The Act has effect for children born on or after 6 April 2009. Accordingly, it could not confer parenthood on CP in relation to A, but it is applicable to the younger children.
  • In 2010, M underwent a further round of treatment at the clinic in the United States, on this occasion by in vitro fertilisation. CP remained in this country, looking after A. A number of embryos were created, and some were transferred, leading to the birth of children in 2011, at which CP was again present. The remaining embryos were transferred in 2013 and further children were born. CP was not present at the birth as her father was dying, but she visited hospital every day. In 2012, M met another woman, who she later married.
  • CP is not named on any of the children's birth certificates. A's surname is a combination of the surnames of M and CP. The younger children's surname is M's surname, and they have CP's surname as their last middle name. When the children were baptised in 2014, CP fully participated in the ceremony. M is recorded on the baptism certificates as their mother and CP as their guardian.
  • At the end of 2014, M moved to a Gulf State with the elder children, while the younger children remained for five months in England with CP and a nanny. CP brought the younger children to M in 2015, returning to England shortly afterwards. M and CP made an amicable arrangement for the children to stay with CP in England for six or seven weeks each summer, and in the Gulf for one or two weeks over every Christmas and New Year period when M was abroad. This arrangement continued until 2019.
  • In 2016, the parties' civil partnership was dissolved by proceedings in England. In 2017, a final financial remedy consent order was made by the Family Court. The order recorded that the parties wanted to give effect to an agreement on child support pursuant to the Child Support Act 1991, directing CP to pay child periodical payments to M for 'the children of the family'.
  • In 2018, M married her partner, and in 2019 they entered into and registered parental responsibility agreements for all the children. In 2021, CP married her own partner.
  • From 2019 onwards, CP's time with the children reduced. She last saw A in December 2020 and she last saw the younger children briefly in the Gulf in December 2021. Since 2021, A has been at boarding school in England, spending some holiday time with M in the Gulf and some with M's family in England. The younger children live with M and her wife in the Gulf, where they go to school.
  • The Issues - This appeal raises two issues: (1) Is CP the legal parent of children who are the subject of applications that she has made, the children's mother being her former civil partner M; and (2) Does the Family Court have jurisdiction to entertain CP's applications?
  • The first question turns on the interpretation and application of s. 42 of the Human Fertilisation and Embryology Act 2008 ('HFEA 2008'), while the second depends on ss. 2(1)(b)(i) and 2A(1) of the Family Law Act 1986 ('FLA 1986').
  • Held – (1) The trial judge erred in finding that CP did not consent to the assisted reproduction procedures undertaken by M, and that finding shall be substituted with a finding that she consented. The appeal was therefore allowed on Ground 1, and it was declared that CP is to be treated as a legal parent of the younger children, and that the Registrar General shall be notified. (2) The provisions of ss. 2(1)(b)(i) and 2A of the FLA 1986 are satisfied in this case with the result that the courts of England and Wales have jurisdiction to entertain CP's applications and to make s. 1(1)(a) orders in respect of the children, including those who are not present in England and Wales. The appeal was therefore allowed on Ground 2 also.
  • Discussion – With regards to the first ground of appeal, the court will only interfere with an evaluative decision such as this if there has been a material error of law or where the decision cannot be reasonably justified. Peter Jackson LJ, with whom Moylan LJ and King LJ agreed, found that the trial judge’s reasoning on ground 1 was unsustainable. Firstly, the judge erred by narrowing the statutory test to being a question of whether CP exercised deliberate choice, rather than considering whether consent could be inferred from all the circumstances of the case. Secondly, following the judges initial error, he then failed to give any real weight to a number of compelling aspects of evidence, including: (a) both parties were in a civil partnership and wanted children; (b) the only way either woman could become a biological parent was through assisted reproduction; (c) The assisted reproduction was carried out three times with the participation of CP; and (d) CP played a full part in supporting M and integrating herself into the children’s lives over a period of years. Thirdly, the judge placed undue reliance on matters of no or limited relevance, including who was the more driven partner of the two.
  • With regards to the second ground of appeal, Moylan LJ, with whom Peter Jackson LJ and King LJ agreed, found that the elements required to bring a case within s. 2(1)(b)(i) and fall within the meaning of “in connection with” are those, and only those, set out in the FLA 1986 itself, namely: that the parties in the matrimonial or civil partnership proceedings are or were "the parents of the child concerned" (including a child of the family); that the matrimonial or civil partnership proceedings are taking place or did place in England and Wales (and concluded other than by dismissal); and that one or other or both of the parents seek a section 1(1)(a) order.
Court of Appeal provides guidance on assessing habitual residence under the 1996 Hague Child Protection Convention.
Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659
  • Background – The father (“F”) appealed ab order made by Arbuthnot J ("J") on 22 December 2022 by which she dismissed the F's application for an order in respect of his child, A, who was born in early 2021, on the basis that the courts of England and Wales did not have jurisdiction to make orders in respect of A. J's decision was based on her finding that A was habitually resident in Zambia and not England and Wales both at the date of the F's application (dated 24 June 2022 and issued by the court on 6 July 2022) and at the date of the hearing in November 2022.
  • A had been wrongfully retained by the mother (“M”) in Zambia on a date not specifically determined by J but which was, at the latest, 23 May 2022 when F sent a text to M formally withdrawing his consent to A remaining in Zambia. A, since her birth, and both her parents were habitually resident in England and Wales when they all travelled to Zambia on 8 March 2022 for what was intended, as found by J, to be a short trip. The mother and A have remained there since then.
  • The Appeal - F’s grounds of appeal were: (a) J was wrong when she decided that the relevant date to assess habitual residence, for the purposes of determining jurisdiction, was the date of the hearing and not the date of the application; (b) the decisions that A was habitually resident in Zambia at the date of the application and at the date of the hearing were both wrong; and (c) J was wrong when she decided that article 7 of the 1996 Hague Child Protection Convention ("the 1996 Convention") did not apply in this case because A had been wrongfully retained in a non-Contracting State.
  • Held – Moylan LJ, with whom Bean LJ and Snowden LJ agreed, upheld the appeal, finding that regrettably it was necessary for the case to be remitted for a rehearing (before a different judge to be nominated by the President of the Family Division) on the issue of A's habitual residence at the date of F's application.
  • Discussion - The courts of England and Wales would have jurisdiction if A was habitually resident here at the date of F's application, even if F is wrong as to the relevant date for the purposes of article 5 and even if A became habitually resident in Zambia by the date of the final hearing. This is because, pursuant to the provisions of the FLA 1986, the date for determining the court's jurisdiction would be based on A's habitual residence at the date of the application.
  • J was wrong to find A was habitually resident in Zambia as A had achieved some degree of integration there. It is clear from many other authorities, that "some degree of integration" is not itself determinative of the question of habitual residence. Habitual residence is an issue of fact which requires consideration of all relevant factors. There is an open-ended, not a closed, list of potentially relevant factors. Self-evidently, a test of whether a child had "some degree of integration" in any one country cannot be sufficient when a child might be said to have some degree of integration in more than one State, the "comparative nature of the exercise" requires the court to consider the factors which connect the child to each State where they are alleged to be habitually resident.
  • When undertaking a comparative exercise, what is important is that the judge demonstrates sufficiently that he or she has had in mind the factors in the old and new lives of the child, and the family, which might have a bearing on this particular child's habitual residence. In this case, J erred in her judgement as there was no reference to other relevant factors such as the nature and extent of A's previous and continuing connections with England. There can be no doubt that this was A's home and the place of her habitual residence when she went, for what was intended to be a short visit, to Zambia on 8 March 2022 and was then unilaterally retained by M in Zambia.
  • Having regard to all the circumstances of the case, on paper, the case that A was habitually resident in England and Wales at the date of the application is a strong one.
The High Court considers an application to vary “peripheral” aspects of a child arrangements order made in another jurisdiction, for practical and financial reasons
NJ v JB [2023] EWHC 1762 (Fam)
  • Background - On 9 August 2022 the mother (“M”) applied to the Family Court siting at Wrexham for a child arrangements order "to enforce and vary an order made on 23 November 2020 (sic, semble 1 July 2021) in Bordeaux, France". That order provided that the parties' child (“C”), now aged 5½, should live with M in England and Wales and have substantial block contact with her father (“F”) in France during holiday periods. The order contained detailed terms as to the practical and administrative arrangements to implement the periods of contact. It also ordered child support in the sum of €300 a month.
  • M did not seek to alter the substance of the Bordeaux judgment; she sought certain minor peripheral adjustments for practical and financial reasons. In her Form C100 she stated: "The contact that the subject child has with her father has become unsustainable. Specifically, the mother's financial position means that she cannot continue to send the subject child to France and the financial burden on the applicant mother is unmanageable. The applicant mother seeks to vary the order to include: change of airport; and the respondent to fund the child's tickets to avoid reimbursement being delayed or refused".
  • On 24 October 2022 HHJ Lloyd, the Designated Family Judge for North Wales, dismissed M’s application “…for want of jurisdiction”.
  • The Appeal – M appealed on the following basis: (a) Brussels II revised applies as these proceedings commenced in France, prior to the transition period of 31 December 2020 and concluded in July 2021; (b) Brussels II revised, Article 9(1) which states 'where a child has lawfully moved from one member state to another and acquired a new habitual residence there, the original state may still have jurisdiction for up to 3 months after the move for the purpose of modifying any judgment on access rights where the parent with contact rights continues to reside in the state where the child was residing'; (c) Article 8 (1) gives priority to the state of the habitual residence of the child: 'The courts shall have jurisdiction in matters of parental responsibility over a child who is habitually resident at the time the court is seized. It therefore creates a starting point of jurisdiction based on habitual residence; (d) The three-month period has lapsed since the making of the Bordeaux Order, which is why the applicant mother applied to the jurisdiction of England and Wales for a variation; and (e) The child moved to Wales lawfully following an interim order being granted in November 2020, a final order made in July 2021 and acquired habitual residence here.
  • Held – Mostyn J allowed the appeal and set aside the order of 24 October 2022, with M’s application to be listed for a FHDRA as soon as possible.
  • Discussion - The Bordeaux Judgment of 1 July 2021 was made in proceedings which began before the UK left the European Union on 31 December 2020. Its recognition, or non-recognition, therefore, fall within the relevant provisions.
  • C is habitually resident in England and Wales, literally, factually and legally. There can be no argument about that. Thus, the Family Court of England and Wales clearly has jurisdiction to entertain the M's August 2022 child arrangements application. In contrast, the Bordeaux court now has no jurisdiction under B2R, or under the 1996 Hague Convention 1996, to entertain a new application for a child arrangements order in respect of C. Under Article 9 of B2R the Bordeaux Court retained jurisdiction for the purposes of implementing the contact provisions in its child arrangements order for three months after C was permitted to live with M in Wales. That three-month time limit expired long ago. Equally, there is no possibility that jurisdiction is retained by the Bordeaux court under Article 10, as that court in November 2020 authorised C to make her primary residence at M's home in Wales.
  • The Family Court therefore not only has the power to make a child arrangements order, as explained above, but is now the only court that can do so. If its judgment is irreconcilable with the Bordeaux judgment it can withhold recognition of the conflicting parts of that anterior judgment.

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