Developments in law relating to Declaration of Parentage

The recent case of Re S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897 was hugely significant involving the children of same-sex civil partners conceiving children by fertility treatment and the rights the non-biological parent can exercise.

In the first instance, Appellant (A), a woman in a same-sex civil partnership, was not recognised as having a legal right to parentage of the children born to the Respondent (R), who was her female partner and therefore appealed against this decision. R gave birth to their children following fertility treatment while the parties were in a committed relationship and A was not named on any of the children’s birth certificates.

On separation R moved to a Gulf State with the older children whilst A remained in the United Kingdom with the younger children. In the first instance the Court held that A was not the legal parent of the younger children as she had not made a deliberate choice in relation to R’s fertility treatment. The Court further held that they had no jurisdiction in respect of the younger children and only had jurisdiction in respect of the oldest children resulting in A’s application for a Child Arrangements Order being unsuccessful in respect of the older children living in the Gulf State.

A’s appeal was allowed and the decisions following the first instance were held unsustainable due to the statute being narrowly applied by the Judges. Had the Judges widely applied the wording of Section 42 of the Human Fertilisation and Embryology Act 2008, A would have been granted the right to apply for a Child Arrangement Order without the Court dismissing her application on the basis that A did not consent to the fertility treatment.

Since this case, a statutory presumption was created under Section 42 of the Human Fertilisation and Embryology Act 2008 for a female civil partner of a gestational mother to be treated the same as a parent of a child born following assisted reproduction unless shown that she did not consent to the procedure. The impact of this presumption provides greater legal certainty and protection for non-biological parents in same-sex relationships to ensure they are automatically recognised as legal parents from the birth of their children.

As Childcare law continues to evolve, it is essential for those involves in assisted reproduction to be aware of their legal rights and the necessary procedures to ensure their recognition as parents.