Legal Parentage, Common Law, and the Human Fertilisation and Embryology Act 2008 – P v Q & F (Child: Legal Parentage) [2024] EWCA Civ 878

The Court of Appeal recently affirmed the initial ruling that when it cannot be established that a child was conceived through artificial insemination [AI], the Court must determine the legal parentage based on common law principles rather than relying on the Human Fertilisation and Embryology Act 2008 [HFEA 2008]. 

The Facts 

P and Q had been married. When they separated, an issue arose as to a child’s of the family (X) legal parentage. 

In 2016, P & Q had attempted to conceive by using AI. It was agreed that P would bear the child. They found a sperm donor (F). After two unsuccessful attempts at AI, P and F met and had sexual intercourse. Natural insemination [NI] between P and F took place on 3 occasions. Q was unaware of the meetings and what happened during them. 

Days after P and F’s last meeting, a third attempt at AI took place. P found out she was pregnant shortly after. It was not clear which method of conception was successful and X was born in 2017.

P was shown as X’s biological mother and first legal parent on X’s birth certificate. Q was listed as X’s second parent as permitted under the HFEA 2008, sections [s.] 34 and 42.

When P and Q’s relationship broke down, P revealed that NI had taken place between her and F. P sought a Declaration of Parentage under s.55A of the Family Law Act 1986 [FLA 1986]. 

The Declaration of Parentage in favour of F was awarded at First Instance. The Judge held that under common law, P was X’s mother and F was her father. This had not been displaced by HFEA 2008 because s. 34 and 42 applied only in cases of AI. It was not possible to conclude, on a balance of probabilities, that X had been conceived via AI, as opposed to NI. 

Q appealed, saying the Judge had misdirected herself as to the party upon whom the burden of proof lay in an application for a declaration under s.55A, FLA 1986.

Decision

Q’s appeal was dismissed as the Declaration of Parentage had been rightly made. 

When considering whether to make a Declaration of Parentage under s.55A FLA 1986, the Court may have to decide issues of fact and law in the normal process of fact-finding and legal analysis. There was no burden of factual proof imported into s.55A FLA 1986 when determining whether or not to make the Declaration.

The Judge at First Instance had been correct to conclude that the starting position from which a child’s legal parentage is defined is at common law, unless statutory provisions applied. NI did not fall under HFEA 2008. Q was unable to convince the Court that X had been conceived by AI and therefore could not rely on s.34 and 42 HFEA 2008.

Where the Court is asked to grant a Declaration of Parentage, the fact-finding aspect will vary from case to case. In this case, P was able to provide evidence that she and F had met. They both agreed that NI had taken place within the conception window. If Q could show that the HFEA 2008 applied, then the Declaration of Parentage might have been refused. However, she was unable to do so. 

While the Court was sympathetic to Q’s position, the appeal was dismissed.

Declarations of Parentage

A Declaration of Parentage is the ability of the Court in England and Wales to make a “declaration as to whether or not a person named in the application is or was the parent of another person so named” (s.55A FLA 1986). 

This does not reflect who has parental responsibility. A parent means a “legal parent” which is important for a number of reasons including nationality, inheritance, and financial responsibility. 

Those with parental responsibility have the ability to make decisions in respect of a child’s upbringing. However, not every legal parent may have parental responsibility and not everyone with parental responsibility will be a legal parent.

If you feel you need advice on Declarations of Parentage, please get in touch via our contact page or contact Sigourney Lee-Smith directly (01295 204009 or slee-smith@se-solicitors.co.uk).