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England and Wales Family Court Decisions (High Court Judges) |
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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Z v X (Declaration of Parentage) [2020] EWFC 67 (14 August 2020) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2020/67.html Cite as: [2020] EWFC 67 |
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Sitting at the Royal Courts of Justice
Strand, London, WC2A 2LL |
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B e f o r e :
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Z |
Applicant |
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- and - |
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X |
1st Respondent |
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- and - |
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A, B and C (By their Children's Guardian) Jane Powell |
2nd, 3rd & 4th Respondents |
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X Did not attend
Mr Tom Wilson (instructed by Goodman Ray) for the 2nd - 4th Respondents
Hearing date: 28th April 2020;
Judgment date 14 August 2020 (hand down 19 October 2020 no attendance required)
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Crown Copyright ©
Mrs Justice Theis DBE:
Introduction
Relevant background
'We understand that the child was conceived artificially.In such cases, if the mother was not married or in a civil partnership, for the applicant to be treated as the father the following must apply:
a) Irrespective of whether the child was conceived using the applicant's sperm or not, the mother and the applicant must have entered a fatherhood/parenthood agreement which must have been in place at the time of treatment and the treatment must have taken place at a licensed UK clinic, orb) The child was conceived using the applicant's sperm, no parenthood agreement was in place and the treatment did NOT take place at a licensed UK clinic.We are advised by the applicant that the treatment took place at CARE Nottingham which is licensed by the Human Fertilisation and Embryology Authority. Therefore (b) could not possibly apply. For this reason, the applicant could only be considered the legal father if the mother and the applicant had entered into a fatherhood/parenthood agreement which was in place at time of treatment'.
Relevant Legal Framework
'I find that if Parliament had intended to alter or amend general principles as to parenthood, specific enactment would have been made in the 1990 Act, particularly as certain gamete donors are specifically excluded from being fathers under s28(6). I find fatherhood concerns genetics and the provision of sperm which results in the birth of a child, unless either there is a presumption of legitimacy which affects the situation or there is statutory intervention.'
'Nor do I accept the argument on behalf of Mr F that the HFEA 2008 is an exclusive code governing parentage in all cases, so that if Mr H is ruled out as a parent as he did not consent to AI, the child will have no father. The statute only governs the situation that falls within its footprint: the situation described would fall outwith the footprint, and the common law would continue to apply.'
(1) Sections 35 or 42 provide another legal parent is established by virtue of marriage or civil partnership;(2) Sections 36 and 37 or sections 43 and 44 provide another legal parent is established by virtue of the agreed 'fatherhood' or 'female parenthood conditions';
(3) Section 41 (1) HFEA 2008 and paragraph 5 Schedule 3 HFEA 2008 provide that the genetic father is not a legal parent where he is a sperm donor who has given the relevant consents;
(4) Section 41 (2) HFEA provide that the genetic father who dies prior to treatment is not the legal parent, subject to any consents given pursuant to section 39 HFEA 2008.
Submissions
Discussion and Decision
'The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation…is, as a moment's reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?'
At paragraph [16] he continues
' …a declaration puts matters on a secure legal footing. It affords both child and parent lifelong security. It puts beyond future dispute, whether by public bodies or private individuals, the child's legal relationship with the parents as being, indeed, his legal parent.'