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J v C and Another [2006] EWCA Civ 551

Appeal by ‘father’ of children conceived by AID against declaration that he was not a ‘parent’ dismissed.

Court of Appeal: Thorpe, Wall and Richards LJJ (15 May 2006)

Appeal by 'father' of children conceived by AID against declaration that he was not a 'parent' dismissed.

The parties to this appeal, Mr J and Mrs C, had gone through a marriage ceremony in 1977; two children were conceived by means of artificial insemination by donor (AID) in 1986 and 1991; and, when the relationship between the parties broke down in 1994, Mrs C discovered for the first time that Mr J was, in fact and in law, a woman. Mrs C obtained a decree absolute of nullity by reason of the fact that, at the date of the marriage ceremony, the parties were not respectively male and female.

At the trial to which this appeal relates, Mr J sought a prohibited steps order that the younger child (to whom the provisions of the Children Act 1989 still applied) should not be informed of her parentage, or the reason for the breakdown in the relationship, and particularly Mr J's gender, except in a manner advised by a named consultant psychiatrist or such other consultant child psychiatrist as might be agreed.

The trial judge had to determine whether Mr J, as a matter of law, was the father of the children. Having considered the definition of 'parent' in section 28 of the Human Fertilisation and Embryology Act 1990 (HFEA 1990), he made a declaration that Mr J was not a 'parent' within the meaning of section 10(4)(a) of the Children Act 1989 (CA 1989), and would therefore require leave to make an application for a section 8 order. However, he refused leave to make such an application, on the basis that Mrs C gave an undertaking to take the advice of the named consultant psychiatrist as to how and when the child should be informed of her origins, and to liaise with CAFCASS and to consider any advice offered by CAFCASS on the issue.

On Mr J's appeal against the trial judge's declaration, the court considered that the issue concerned a short point of statutory construction. The consensus among counsel was that section 27 of the Family Law Reform Act 1987 (FLRA 1987) was the applicable provision, in this case, defining parenthood in the context of AID: counsel for Mr J advocated a literal interpretation of the provision; for Mrs C, it was argued that the words 'a party to the marriage' and 'the other party to that marriage' were fatal to Mr J's case, as there had never been a valid marriage.

Held, dismissing the appeal, that the judge had clearly been right in the conclusions that he reached. Furthermore, in view of the undertaking given by Mrs C to the judge, Mr J had achieved by that undertaking all that he could reasonably expect to achieve in the proceedings.

As to the statutory basis for the judge's decision, the court concluded that HFEA 1990, s 28 was not the applicable provision, since Mrs C must have been artificially inseminated before 1 August 1991 (the date on which the provision came into force); nevertheless, the judge had reached the correct conclusion in interpreting virtually the same words as in FLRA 1987, s 27, namely 'a party to the marriage' and 'the other party to that marriage'. Whilst it was potentially dangerous to use the words of one statute in the construction of another, it was desirable to have consistency in the interpretation of near-identical language used in the same context but in different statutes. HFEA 1990 undoubtedly tightened the law on AID and IVF, introducing a strict system of licensing and the concept of consent to treatment. It would be most unfortunate if the word 'father' were to have a different meaning in the two statutes.

As a footnote, the court identified that the real question in this case was how the children were to be informed about their respective origins; this was a highly sensitive matter, but it did not seem to be one which was ultimately justiciable by way of orders under CA 1989, s 8: there was a limit to the extent to which the court could and should seek to govern parental behaviour.

Read the text of the full judgment here