Who are the legal parents?

Where a child is conceived outside of a licensed clinic, working out who are the legal parents of a child depends on the circumstances of conception and whether the mother is married or in a civil partnership at the time of conception. The crucial distinction between artificial insemination (AI) and natural insemination (NI) will determine if the case falls under the HFEA 2008 or the common law and the scheme of the Children Act 1989. The case of P v Q & F (Child: Legal Parentage) [2024] EWCA Civ 878  https://www.bailii.org/ew/cases/EWCA/Civ/2024/878.html demonstrates how this played out where it was impossible to tell how the child was conceived. This case involves an appeal regarding the legal parentage of X, a 6-year-old child. Her genetic and gestational mother is P, and her genetic father is F. X's birth certificate listed P and Q (P's former wife) as parents. The case arose after P applied for a declaration that F, not Q, was X's legal parent.

Background Facts

P and Q had agreed with F that he would act as their sperm donor. F provided sperm for artificial insemination (AI) of P on three occasions. Unknown to Q, P and F also had natural intercourse (NI) three times during the same period. X was conceived during the third occasion, but it was impossible to determine whether through AI or NI. When X was three, P and Q separated. In 2022, P revealed the NI and sought a declaration that F was X's legal father.

First Instance Decision

Mrs Justice Gwynneth Knowles found that NI had occurred and that it was equally likely that X was conceived through AI or NI. She concluded that the burden of proof was on Q to show that X was born from AI and as she was unable to do so, F was the legal father. She declared Q was not X's legal parent and directed the Registrar General to consider re-registration of X's birth.

Legal Framework

The Human Fertilisation and Embryology Act 2008 (HFEA) provides that a mother's female spouse will be the second parent of a child born through assisted reproduction, unless shown not to have consented. However, this only applies where the statutory conditions are met – specifically that the child was conceived through AI. Otherwise, the common law applies, whereby the genetic father is the legal father.

Appeal

Q appealed on several grounds, but permission was granted only on the ground that the judge had misdirected herself on the burden of proof. Q argued that P needed to prove X was conceived by NI, which she had failed to do.

Court of Appeal Decision

The Court of Appeal dismissed the appeal. Lord Justice Peter Jackson held that:

1) The starting point is that a child's parentage is defined by common law (genetic parentage) unless displaced by statutory provisions

2) For HFEA 2008 to apply, the foundational condition that the child was born through assisted reproduction must be satisfied

3) P had the burden of proving F was X's genetic parent and that NI occurred during the conception window

4) Q had the burden of showing that the statutory provisions applied, which she could not do

5) Birth registration is prima facie but not conclusive evidence of parentage

Outcome

All outstanding welfare matters were subsequently resolved, with the judge granting parental responsibility to all three adults for X.