England and Wales High Court, decisione del 31 gennaio 2013

THE HONOURABLE MR JUSTICE BAKER

Introduction

1. These proceedings involve separate but linked applications by two men for leave to apply for orders under s.8 of the Children Act 1989. In each case, the application concerns a child conceived using sperm provided by the man and born to a woman in a civil partnership. As a result of the reforms introduced in the Human Fertilisation and Embryology Act 2008, legal parenthood of the children is vested in the mothers and their respective civil partners to the exclusion of the biological fathers who therefore have no right to apply for orders in respect of the children without the leave of the court.
2. I am told that these two cases are the first to come before the court involving an application for leave to apply for s.8 orders from men who, having provided sperm for couples in a civil partnership, are by virtue of the 2008 Act not the legal fathers of the children thereby conceived. It is argued by counsel appearing before me that the outcome of this case has significant public policy implications in respect of how the law affects families created through gamete donation.

Background: Case One – Re G

1. The two male applicants, hereafter referred to as S and T, have been in a relationship for twenty years. In 2001 S became friends with a woman, D, although they disagree about the closeness of that friendship. In 2003, when on holiday in the Netherlands, D met another woman, E, and started a relationship with her. In 2006, E moved to England to live with D. At that point, both couples, S and T, and D and E, lived within 100 yards of each other in London.
2. D and E decided that they wanted to try to have a child, and agreed to ask someone they knew to provide the sperm. Having approached D’s brother, who declined, they eventually asked S and he, having discussed the matter with T, agreed. It was decided that E would be the biological and birth mother of the child.
3. It is a central feature of the case advanced by D and E that they made it clear to S that the arrangement was based on three terms which they summarised as ‘(1) no parental title (2) no parental responsibility and (3) no financial commitment’. They described these as ‘the three cardinal points’ of the arrangement. They say that it was agreed that S would have no role in bringing up the children and that they would continue to socialise as adults. They assert there has never been a relationship between S and the children other than that of being a friend of the parents. In her statement, E states:

‘ We wanted a known donor to make it possible for the child to find out more about its background. We were not looking for a father, we didn’t want involvement, we, that is D and I were to be the parents.’

1. According to S, however, that phrase was never used prior to the start of the court proceedings some years later. S now asserts that, had D or E ever expressed terms as ‘harsh and stark’ as those, he would certainly have refused to be involved. It is S’s case that D and E promised that he would be known to the child as its father and have a role in the child’s life. He says that he was keen to be a father and that his partner, T, was equally delighted as they had always wanted to have children. According to S, it was agreed between the parties that, although D and E would be the primary parents, he would be involved in the child’s upbringing and he and T would have contact with the child. He continues:

‘importantly, I would be known to the child and to the rest of the world as its father, although it would not carry my name. I did not mind about the name, it was more important for me to be known to the child as its father, and to play the role perhaps as a friendly, caring and involved adult. The mothers did not request or want a financial contribution. We did not use a clinic authorised under the Human Embryology Fertilisation Act, or feel the need for a written agreement. In that respect, it seems ill-advised not to have gone into more detail about what we all expected from our relationship with the child in years to come or not to have recorded at least the key points that we had agreed in writing. But we were excited and such good friends over several years, so we thought there were no obstacles which could not be overcome. This was an informal arrangement among four close friends. In fact, in December 2007, we all went away together for a holiday in Le Touquet.’

1. In January 2008, attempts to conceive home insemination were started, and in March of that year E became pregnant.
2. In September 2008, D and E entered into a civil partnership. S and T attended the ceremony. T made a wedding cake and compiled a photograph album as a gift for the couple.
3. On 28^th December 2008, E gave birth to her first child, a girl, F. On the following day, S visited mother and daughter in hospital and took a number of photographs. S says that he felt immensely happy and proud to be a father.

10.Thereafter, there was regular contact with F which, according to S and T, took place approximately once a week. The contact took place at both their home and the mother’s home. F was introduced to S’s mother and other members of his family and subsequently to members of T’s family. According to D and E, the contact was less frequent. They say that it took place every couple of weeks and insist it was never what they described ‘organised’ contact but rather about socialising as friends. In her statement, E asserts that S mainly enjoyed talking to D and did not really engage with F. E says that it was T who made more effort to play with the baby. In July 2009, S, T, D, E and F all met and spent the day together with other friends on ‘Gay Pride’ day. There were also other occasions when S and T spent time with D, E and F.

11.Around this time, discussions started between T and two female friends of D and E, known hereafter as X and Y, who were also in a same-sex relationship and wanted to start a family. Following their discussions, T provided sperm for X and Y and in due course X became pregnant in August 2008. The subsequent history of that case is set out below.

12.On 12^th September 2009, S and T entered a civil partnership. D, E and F all attended. They were placed on the top table at the reception, something which, according to D and E, took them by surprise. There was a photograph of F with S and T on the front of the service sheet.

13.Shortly afterwards, discussions took place between D, E, S and T about having a sibling for F. There is a conflict of evidence about the discussions. It seems that there was some suggestion that T would provide sperm but E says that she was keen for the second child to have the same biological father as F, and S duly agreed. In his statement, S says:

‘we thought that it might help us to draw even closer to the mothers and we were pleased that they were pleased enough with F to ask me to father another child. It seemed to be an acknowledgement that all was going well and they were happy with our fatherly behaviour towards F.’

According to E, T stated at one point during these discussions that S wanted his surname for the child, that he needed to be consulted about names and that he wanted to be on the birth certificate. E says that they informed him that, under the new law, D’s name could be included on the birth certificate of the new baby. The mothers’ case is that they told S and T that the children would continue to have their surname and that S would not be involved in the upbringing of the child.

14.In December 2009, E became pregnant again following home insemination. At around the same time, there was the first argument between the couples. It occurred when a friend of T’s upset D by referring to her as F’s ‘auntie’ rather than ‘mother’. S states that D and E complained that he and T were interfering and trespassing on their family, and about the special treatment that they had been given at S and T’s civil partnership celebration, and said that they should not think of F as their child and that S was ‘just a sperm donor and not a father’. D accepts that she did describe S in those terms but says that she did so ‘in exasperation at T’s inability to listen to reason’. According to D, she and E reiterated the three ‘cardinal points’ of their agreement during this conversation. Thereafter, however, relations between the couples continued as before. S continued to see F regularly, although the parties disagree about the frequency and the quality of this contact.

15.On 27^th April 2010, as described below, X gave birth to her son, Z, following home insemination with sperm donated by T. Thereafter, there was very frequent contact between D, E and F and X, Y and Z.

16.On 1^st September 2010, E gave birth to her second child, a boy, G. Following the reform of the law, D’s name was included on G’s birth certificate. Again, S visited the new baby in hospital on the following day. Thereafter, according to S and T, they continued to see F and G frequently. On 28^th December, while T was away in Sri Lanka, S joined D and E to celebrate F’s second birthday.

17.According to D and E, during the Spring of 2011, they noticed a change in the pattern of S’s visits. He seemed to be calling regularly on Saturday morning. According to the mothers, however, the nature of the visits did not change. They were still ostensibly to see D, his longstanding friend, and he paid little or no attention to F and rarely saw G who was usually asleep after his morning feed. E says that, in retrospect, she and D suspect that the pattern of visitation changed because T had taken legal advice in respect of his relationship with Z. They believe that T put S under considerable duress to change the nature of his relationship with F and G. This is, however, denied by S and T. It is S’s case that, by this stage, he and T had a strong bond with F.

18.On 17^th July 2011, in the course of a telephone conversation with E, S asked if he could take F to the park on his own and help more with the children. According to E, S said: ‘I have decided that F is old enough to see us by herself’. E states: ‘from this moment we have found ourselves in an increasingly stressful situation, put upon us by S’s confrontational and challenging behaviour’. On 23^rd July, D visited S and T and an argument ensued. According to S and T, D expressed concern at the number of photographs of the children in their house. According to D, she wanted to have a private conversation with S but T intervened and became aggressive towards her, asserting: ‘we are the fathers, these children need fathers, they are our children, we are the fathers’. She says that T referred to her and E as ‘cheating lesbians who have stolen our sperm’. She says that he jumped up and down banging his chest and shouting ‘these are our children, we will fight you tooth and nail for our children’. She accepts that she described T as ‘a manipulative little shit’.

19.On 2^nd August 2011, S wrote to D and E suggesting mediation. He received no response to this proposal. On 14^th August, S visited E at home without the children. There is again a dispute as to what occurred during their conversation. According to E, S said: ‘I am equal to you, E. D’s role is dubious. After all, she can’t call herself the father, can she?’ S asserts that ‘it became clear in the conversation that she was never going to allow me to be the father I was once promised and have been since the children’s birth.’ Both E and S agree that E stated during this conversation that she and D wanted contact to be restricted to supervised visits once per month.

20.On 27^th August, S and T visited the children at the mother’s home for about an hour. According to S, there was a very tense atmosphere and little was said between the adults. S says, however, that ‘the children were clearly very pleased to see us both and particular want to be very close to me and kiss me’. D and E describe this as an inaccurate account of what happened. G was asleep for most of the visit. They said that they had never seen F either hug or kiss S. G did not even recognise S. On 29^th August, S repeated his request for mediation which was again refused. Following this, S filed his first application for contact. Under those proceedings, the application was referred for mediation. An initial mediation session between S and E took place on 9^th December followed by a further session on 6^th January 2012. E indicated that she was only willing to offer supervised contact between S and the children.

21.On 10^th January 2012, S was diagnosed with a brain tumour and admitted to hospital. He and T decided to drop their application for contact. On 20^th January, D, E and the children visited S in hospital. S subsequently underwent brain surgery followed by radiotherapy. Thereafter, no contact took place. According to S, on one occasion when passing the mothers’ home, he saw E and F outside, whereupon E pulled F into the house. On 21^st May, S sent a text message to D asking to arrange a time to see the children. D replied offering contact in August.

22.On 3^rd July, S filed a further application seeking parental responsibility and contact in respect of F and ‘parental responsibility/joint residence order’ and contact in respect of G. In his statement in support, S states:

‘T and I are effectively being lost to the children, which will seriously weaken their lives and damage their well being. I believe that a rich and rewarding relationship with their father and his partner, their extended families and their friends, will add to their security and their life experience. It will also be perfectly compatible with their family home life with D and E. That was the original arrangement we had and was what we provided until July 2011.’

In a subsequent statement he adds:

‘I will accept that the reality of becoming a parent to two new human beings was more wonderful than I had expected, and that I felt a stronger tie to both F and G than perhaps I imagined I would. I do not accept, however, that my expectations of the contact I would have with the children have changed. ….I do not dispute that D and E are perfectly adequate parents; they are much more than that. However, I believe strongly that the children would benefit from the presence in their lives of me as a father, and would be deprived if they were not allowed it.’

He added:

‘If they had wanted a mere sperm donor who would have no involvement with the children I can not understand why they would choose a close friend who was already living around the corner from them whom they saw on a very frequent basis’.

23.In response, in her statement, E states:

‘S has seen the children while socialising, and I do realise that this may have brought up feelings for him although he never showed any. However, S never expressed wanting to have a role, he hardly engaged with the children. In fact there was no relationship between him and the children or any official contact arranged between them….The change in behaviour came when T donated sperm to X and Y, our friends. It was T who started to portray F to the world as his and S’s child (the picture on their civil partnership)… We do find it very important that F and G will be able to have contact with S when and if they want to. The relationship that might develop will be one that is led by the children, not by any of the adults. We have always reassured S about this, and will never break our word. Unfortunately S has, unilaterally, changed the nature of the agreement and now tries to force himself into their lives to have a position that was never intended or agreed, or in fact one that he had had no interest in having’.

24.D adds:

‘G was conceived after the HFE Act 2008 whilst E and I were in a civil partnership. S has no relationship with G and he and his witnesses hardly mention G. ….If the law is upheld, S should be told that he has no rights over G. He may have rights to F but the quality of contact with her is poor. We beg the court to put F under the same protection as G.’

In conclusion, D says:

‘a donation is a gift freely given with no expectation of a return. Having a donor does not obligate a relationship between the donor and the resulting child. It does, however, allow the possibility of one if the child so desires. We will promise to facilitate contact with our children and S. This contact, however, will be when the children wish it and will be child led. That is what we always promised….We would propose that there is no contact until such time as G and F seek knowledge of their genetic background’.

25.Both D and E speak at length in their statements of the impact on them and the children caused by S’s application, referring to stress, pressure and tension, causing upset for the family. E states:

“We don’t feel safe any more living so close to the applicant, who has been seen by neighbours loitering and asking information about us, and decided to move out of the area. D has lived here for twenty years and is heartbroken…”

Background: Case Two – Re Z

26.T comes from Sri Lanka and has, as stated above, been in a relationship with S for twenty years. He works in a senior position in education. X and Y began a relationship in 2001 and entered a civil partnership in 2006. In her statement, X says that she has wanted to start a family for many years but decided not to attempt to do so until she met someone who she saw as a lifelong partner ‘to ensure that we would create a loving, stable and inspiring environment for our child’.

27.As set out above, T was introduced to X and Y through their mutual friends, D and E. There is a stark difference between the parties as to the terms of the understanding reached between them. According to T, it was agreed that X and Y would be the parents of the child conceived but that he would be child’s father and involved in his life. T states that it was agreed that the baby would have his surname and that this would be recorded on the birth certificate. Furthermore, he was under the impression that he would be the baby’s legal parent. He states that he was unaware at that stage of the terms of the 2008 Act.

28.X and Y, on the other hand, give a very different version of the understanding between the parties. They assert that they explained that they wanted to have the same arrangement that S had with D and E, that is to say, a known donor with no financial or other responsibilities. X and Y also say, however, that they wanted a ‘role model’ for the baby. They had previously approached a friend who had provisionally agreed to be the donor but had subsequently moved to the United States. X and Y thought that travel distances would make an arrangement for contact ‘logistically difficult’ as it was likely that the friend would only be able to visit at most once a year. X told T that she and Y would like a little more contact than that’. X and Y accept that T asked if he could be on the birth certificate but state that they did not agree. They insist that the terms of the agreement with T were that he would be a known donor, without parental or financial involvement and that contact would be on that basis. They state that T did not in any way express that he wanted a parental role or a father – son relationship.

29.Following artificial insemination with T’s sperm, X became pregnant in July 2009. It seems in this case, however, that difficulties between the parties arose during the course of the pregnancy. T asserts that, after X became pregnant, she told him that she did not want to acknowledge him as the child’s father, which was, he says, completely different to the arrangement agreed before the sperm donation. According to X, T started exerting pressure to increase his status and involvement before the child was born. On one occasion, he sent her a text referring to ‘our son’ and, when she asked what he meant by this, he told her that he was referring to himself and S. X says that, despite these concerns, she and Y tried to reassure T that he did have an important role ‘as a known donor and role model but not as a father’. X and Y state that they were ‘incredibly grateful’ to T for donating sperm so that they could start a family and they wanted to keep relations positive. When, during the pregnancy, T raised concerns about the baby’s heritage and expressed a wish that should be reflected in the name, X and Y agreed that the baby should have a Sri Lankan middle name. There were further discussions about whether or not T’s name should be on the birth certificate, although this was not possible as a result of the change in the law.

30.On 27^th April 2010, X gave birth to a boy, Z. In her statement, Y states that she was certain that the anxiety arising out of these conversations contributed to problems that X experienced during the pregnancy and the difficult birth.

31.Thereafter, T had contact with Z on 51 or 52 occasions, approximately once per fortnight. Either X or Y was present on every visit. On some occasions, T was accompanied by S. In her statement, X asserts that the level of visits was

‘far in excess of what we had anticipated or wanted; however we increasingly felt pressurised by T to allow these visits to take place’.

She states that she and Y agreed because of the feelings of gratitude and because they wanted to maintain positive relations for the sake of Z. Y states that the only reason T saw Z fairly frequently during the first 18 months of his life was because she and X felt pressured to offer contact.

‘We now feel that we should have perhaps have been firmer with T at an earlier stage, but that is easy to say in retrospect. Our desire to try and pacify him and to make things work resulted in us giving far more than we had ever wanted or expected to give’.

In addition, X and Y acceded to a request from T that he should set up a bank account for Z to access when he was 18 years old. X says that she and Y were very uncomfortable about this proposal but they agreed in the interests of trying to develop positive relations.

32.X states that, in the Summer 2011, she and Y became further concerned about the situation as a result of the arguments that occurred between S and T on the one hand and D and E on the other. In September, they met T to discuss what they describe as ‘a deteriorating situation’. According to X, T ‘made it very clear that he had received legal advice and outlined his expectations to see Z every two weeks unsupervised’. A further meeting took place on 23^rd October 2011. At this meeting, X and Y told T that he could only see Z four to six times a year and only under their supervision. According to T, they added that contact would only continue if he behaved in the way that they thought was appropriate. He states that X and Y told him that contact was subject to his agreeing to support their status as Z’s parents and that the purpose of contact would be to enable Z to foster links with his genetic heritage and not to create a parental relationship. According to X and Y, T became abusive, threatening and insulting during this meeting and as a result, Y felt constrained to remove Z next door.

33.Following this meeting, on 28^th November 2011, T issued an application for permission for leave to apply for a contact order. Before that application proceeded any further, however, S suffered the brain tumour referred to above and in February 2012, with the consent of X and Y, T withdrew his application.

34.On 10^th March, T visited Z at the home of X and Y. The circumstances of this visit are disputed between the parties. According to T, Z was

‘very pleased to see me. He has a definite and obvious bond with me. He is entirely relaxed with me. …. X and Y stayed in the room throughout. Z was very pleased to see me and ran to me. He wanted to sit on my lap and read a book but every time he came over to me X distracted him and he returned to her side. Such was the atmosphere that I found it impossible to stay for the whole of the visit and S and I left early’.

X and Y describe this account as inaccurate. They state that T made no attempts to interact with Z during the visit. They do not accept that there was any sign of a bond between Z and T. X describes T’s assertion that he has a bond with Z and that Z is entirely relaxed with him as ‘a bare-faced lie’. X and Y add, however, that ‘as things had gone smoothly we offered another two contact times in July and November’. In the event, T re-launched proceedings in July and no further contact has taken place.

35.T puts his case in the following way.

‘I am Z’s birth father. I donated sperm to X to enable her to conceive…. Z is a mixed race child and has a strong physical resemblance to me. I regard it as fundamentally important that Z grows up with a knowledge of his Sri Lankan heritage. This is something that I am best placed to help him with. I believe it is in Z’s best interests to know me and have regular contact with a caring father, and to have me as a successful role model in his life. My child deserves to be given every opportunity in life and that includes having his father in his life. I am applying for leave to apply for an order that I be allowed to have contact with Z on alternate weekends either on a Saturday or Sunday on an unsupervised basis… I have no wish nor is it my intention to interrupt or disturb the family life enjoyed by Z with X and Y… However, I do want to prevent my role in Z’s life being relegated to that of an occasional visitor…. I understand that X and Y are concerned that my real intentions are to apply for residence order to enable me to acquire parental responsibility for Z. I have no intention of making such an application.’

36.In response, X asserts that, if T had set out his aspirations at the outset, they would not be in the position they are today as they would not have proceeded with the sperm donation. She asserts that she tried to get T to sign a written agreement, setting out the terms of the arrangement but he refused. She says that she doesn’t think that enough time was spent discussing arrangements with T at the outset. She says she thought she and Y were explicit about the expectations and that the boundaries were clear.

‘If we had held further discussions and drafted a contract then our different expectations may have been discovered sooner and we could have addressed them or decided not to proceed.’

37.X continues

‘I wish to exercise my legal and parental rights to put Z’s well being first, to halt the detrimental impact on Z, Y, myself and our family unit that T is causing. I want to restore my health and protect my relationship with Y. These things are more important that continuing to try to meet T’s unagreed and unrealistic expectations. I want to protect Z from the emotional pressure T will place on him to achieve his aims of developing a father – son relationship.’

She adds that, when Z gets older he will be able to make his own choices which she will support. X accepts that her thoughts and feelings about the value that T could bring to Z’s life have changed and she no longer thinks he can provide a role model for Z.

‘I regret trying to accommodate him and being sensitive to his expectations which were never agreed and are completely unrealistic. He has used various tactics to achieve his personal goal. He has intimidated me, threatened our family unit and distorted the facts. He has created an acrimonious environment for Z.’

38.X accepts that she and Y regard it as fundamentally important that Z is made aware of his heritage and state that they will do everything they can to help him understand this at the right time. They do not accept, however, that T is best placed to explain to Z his biological make up. Furthermore, X alleges that T and S have intimated that they will ‘place the race card’ in order to gain contact with Z. X says that this has disturbed her deeply. X adds:

“The brutal reality is that we have only enjoyed a few weeks of settled family life together in total since Z was born. I have lived in fear of Z suffering emotional manipulation, growing up in conflict, being confused about the differing roles of adults in his life and his happy life being disrupted.”

39.X’s position is fully supported by Y who states that it is clear from T’s conduct that he does not respect her position as Z’s legal parent and behaves in a way that undermines her. Speaking for herself and X, Y asks the court to

‘uphold the purpose of the change in the law which makes us Z’s legal parents. This law was put in place to protect same-sex parents conceiving with a known donor… the law recognises us as Z’s sole legal parents and specifically exclude T’s status by providing that he is not to be treated as Z’s father ‘for any purpose’. The law has to have some meaning, and it will be entirely inappropriate to treat T in a comparable way to a separated father or to a known donor who is the child’s legal father.’

History of the Proceedings

40.On 10^th September 2012, District Judge Bowman sitting in the Principal Registry, gave directions in respect of T’s application including a direction for the listing of the application before a high court judge.

41.On 26^th September, Deputy District Judge Willbourne sitting in the Principal Registry gave similar directions in S’s application in respect of F and G. At that hearing, S was unrepresented and D and E were represented by solicitors. D and E offered contact every 6 months and an interim order was made in those terms. A contact visit duly took place between S, F and G in the presence of E on 16^th October.

42.S’s application for leave to apply for orders in respect of G, and for interim contact in respect of both F and G, was listed before me in the urgent applications list on 22^nd November. At that hearing, S was represented by counsel but D and E represented themselves. Counsel for S, Miss Madeleine Reardon, produced succinct written submissions. Having considered those and all submissions by counsel and by D and E, I granted leave to S to apply for orders under s8 in respect of G (giving brief reasons but no detailed judgment for my decision) and gave further directions, including joining F and G as parties and requesting that CAFCASS appoint a guardian to represent the children under FPR Rule 16.4. There was insufficient time to consider the issue of interim contact, and I therefore adjourned the matter for a separate half-day hearing at which further case management directions would be given in the proceedings.

43.At the hearing on 22^nd November, I was informed that the application for leave to apply in the case of Z was listed for a hearing later in the week and there was some discussion about whether the two cases should be heard together. I indicated that I would liaise with that other judge hearing the application. In the event, however, the application in Z’s case did not proceed that week but instead was re-listed (apparently coincidentally and certainly without my involvement) before me on 5^th December.

44.In contrast with the hearing of the case of F and G at which, as stated above, the mothers had been acting in person, both parties on the application in Z’s case were represented by counsel and, in the case of X and Y, leading counsel. Furthermore, whereas the preparatory documents filed in the first case had been comparatively brief, those filed in the case of Z were much more expansive. On behalf of T, Miss Samantha King filed a skeleton argument running to some 45 pages and 130 paragraphs (this being by some distance the largest such document I have encountered on any application for leave). It traversed a range of issues including some not canvassed by Miss Reardon in the first case. The skeleton argument in the reply from Alison Russell QC was considerably shorter but the arguments deployed were much more extensive than those put forward by D and E acting in person in the first case. In addition, a range of reported authorities and other material was filed contained in four lever arch files.

45.As the above summaries demonstrate, there was considerable overlap of the facts of the two cases and the issues raised in the second case were substantially the same as those arising in the first. However, the arguments deployed in the second case were much more extensive although manifestly relevant to the first. I therefore reached the preliminary view that I should revisit my previous decision granting to S to apply for leave in respect of G and arrange a further hearing in which both applications for leave, by S in respect of G and by T in respect of Z, could be considered together. Before reaching a final conclusion on this cause, I invited the parties in the first case to attend court and make submissions on the proposal. By this stage, counsel Miss Deirdre Fottrell had been instructed (on a pro bono basis) to represent D and E. She and Miss Reardon attended court and it was agreed that they would make submissions in writing on the question of whether the order of the 22^nd November should be set aside. Having considered those submissions, I informed counsel that I had decided to set aside that order, and that the reason for my decision would be given later (as to which, see below). At Miss Reardon’s request, I extended the time for leave to appeal against that decision until 21 days after the reasons had been given.

46.As a result, both applications for leave by S in respect of G and by T in respect of Z, were re-listed before me on 20^th December. Further submissions were filed by counsel. At the conclusion of the hearing, I reserved judgment.

Setting aside the order of 22^nd November 2012

47.Rule 4.1(6) of the Family Procedure Rules 2010 (“FPR”) provides that ‘a power of the court under these Rules to make an order includes a power to vary or revoke the order’. Rule 4.1(6) is, of course, subject to the overriding objective of the FPR as set out in rule 1 “to deal with cases justly”, meaning inter alia so far as practical ensuring that parties are on an equal footing and that the case is dealt with expeditiously and fairly.

48.No party drew to my attention any previous case in which the scope of rule 4.1(6) has been considered, but the rule is in identical terms to rule 3.1(7) of the Civil Procedure Rules 1998, which has been considered in a number of cases in the context of civil claims. In Lloyd’s Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch) Patten J (as he then was) considered this power on an application by a defendant for variation of an order made by a deputy judge setting aside an earlier judgment obtained in default of defence, on terms that the defendant should pay a sum into court within 28 day At paragraph 7, Patten J said of rule 3.1(7) :

‘Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ.’

49.In Collier v Williams [2006] EWCA Civ 20, the Court of Appeal, (Waller, Dyson and Neuberger LJJ), considered the ambit of rule 3.1(7) amongst a number of provisions of the CPR. Giving the judgment of the Court, Dyson LJ at paragraphs 39-40 cited the passage quoted above from the judgment of Patten J in Ager-Hanssen and added:

‘We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).’

50.Later, at paragraphs 119-120 he said:

‘this rule gives a very general power to vary or revoke an order. It appears to be unfettered. But it is a wrong exercise of this power to vary or revoke an order where there has been no material change of circumstances since the earlier order was made and/or no material is brought to the attention of the second court which was not brought to the attention of the first. A party who unsuccessfully deploys all his material before a court should not be allowed to have a second bite of the cherry merely because he failed to succeed on the first occasion …. In short, therefore, the jurisdiction to vary or revoke an order under CPR 3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion.’

51.In Edward v Golding [2007] EWCA Civ 416, Buxton LJ (with whom Wilson and Moses LJJ agreed) cited the above passages from judgment of Patten J in Ager-Hanssen and the judgment of Dyson LJ in Collier v Williams and observed (at paragraph 24):

‘The basis of that jurisprudence is that the jurisdiction under rule 3.1(7) is not a substitute for an appeal. There must be additional material before the court in the form of evidence or, possibly, argument. I would reserve the issue of whether additional argument in itself is enough to attract the jurisdiction of rule 3.1(7), but the general thrust of Collier is that the case before the court before which rule 3.1(7) is moved must be essentially different from one of simple error that could be righted on appeal.’

52.In Roult v North-West Strategic Health Authority [2009] EWCA Civ 444 , the Court of Appeal rejected an argument that rule 3.1(7) could be utilised to vary or revoke an order approving a settlement in a personal injury case. Hughes LJ observed:

‘There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. …. Like Patten J in Ager-Hanssen I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. …. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge’s order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.’

53.In the light of those authorities, Miss Fottrell submitted that this court had the power to set aside the order of 22^nd November and reconsider S’s application for leave to apply for orders in respect of G. She submitted that the power under CPR 3.1(7), which is replicated in FPR 4.1(6) gives the court a broad discretion which is exercisable in respect of any order made by the court unless expressly barred by the rules; that the power applies to all interim decisions which are made within the substantive proceedings including an order granting a party leave to make an application; and that the power could be invoked where there is a change or circumstance, or where important factual or legal matters were not before the Court. In this case, she submitted that a number of relevant matters had not been canvassed before or considered by the court at the hearing. She pointed out that there had not been a full consideration of the matters set out in s.10(9), or the respective rights of the parties and the children under Article 8 of ECHR, or the wider public policy considerations under the Human Fertilisation and Embryology Act 2008 . She argued that this was a particularly significant omission as the legal status of a donor under s.42 of that Act and the Children Act 1989 has not hitherto been considered by a Court in this jurisdiction.

54.In reply, Miss Reardon submitted that the power to vary or set aside should not be exercised in respect of the order of 22^nd November, on the grounds that an order granting leave was a final, as opposed to an interim, order. It was well established that a final order could not be set aside or varied under the court’s inherent jurisdiction other than in limited and specified circumstances, most of them involving a discovery, after the order was made, of facts which would have been relevant to the decision: eg fraud, material non-disclosure or mistake: de Lasala v de Lasala(1979) FLR 223. As for the power under FPR 4.1(6), Miss Reardon submitted that the authorities cited above demonstrated that it did not apply to final orders. Furthermore, no additional evidence was being put forward on behalf of D and E, and Miss Reardon submitted that there is no binding authority for the proposition that the power to vary or revoke an order under CPR 3.1(7) or FPR 4.1(6) could be exercised merely on the basis of additional argument which was not placed before the court on the earlier occasion. Miss Reardon contended that the dicta of Dyson LJ to the contrary in Collier v Williams at paragraph 120 were both obiter and inconsistent with his earlier comments at paragraph 39-40 and she relied on the fact that the Court of Appeal in Edward v Golding at paragraph 24 specifically left the question open. She submitted that the proper course for the respondents to take, if they were dissatisfied with the decision made by the court on 22 November 2012, was to apply for permission to appeal that decision.

55.Having considered the written submissions on this point, I allowed Miss Fottrell’s application, for the following reasons.

56.At the hearing on 22^nd November, D and E, appearing in person, put forward only a limited range of arguments in opposition to S’s application for leave to apply for orders in respect of G. Those arguments focussed on the factual background, referring only briefly to s.42 of the 2008 Act. The skeleton argument prepared by Miss Russell QC on behalf of X and Y in the second case deploys a much wider range of arguments, based not only on the facts of that case, and, as one would expect, a closer analysis of the application of s.10(9) of the 1989 Act to those facts, but also on the policy considerations underpinning the reforms effected by the 2008 Act. The filing of that skeleton therefore gave rise to the prospect that, although the facts of the two cases were not only interlinked but also in many respects similar, the outcome of the applications for leave might be different if the court accepted the policy-based arguments deployed by leading counsel for the respondents in the second case but not cited by the self-represented respondents in the first.

57.Having regard to the overriding objective of FPR, I concluded that such an outcome would be potentially unfair to D and E, and therefore to G. In those circumstances, I decided that it would be an entirely appropriate use of the power under rule 4.1(6) to set aside the order of 22^nd November. To my mind it was unnecessary to analyse whether the new information which would be advanced on behalf of D and E was ‘fact’ or ‘argument’. It was, in my view, new material which the court had not considered at the previous hearing.

58.An order granting leave to apply for orders under s.8 of the Children Act is a case management order. It is not a “final” order in the sense of an order that determines the substantive outcome of the proceedings. The court is obliged under the rules to exercise its case management powers in accordance with the overriding objective. Setting aside the order allowed the court to consider the two linked applications together, and apply its conclusions on the policy-based arguments to both cases. Such a course would not be unfair to S. Only a few weeks would elapse between 22^nd November and the re-hearing of his application for leave. S would be able to deploy the same arguments based on the facts that had prevailed at the first hearing. He would in effect be in the same position as T.

59.Overall, I concluded that the interests of justice would be best served by a re-hearing at which the court had ample opportunity to consider all the relevant arguments on both applications, followed by a reserved judgment. I therefore set aside the order of 22^nd November, and as explained above the two applications were heard together.

S.10(9): statutory provisions and case law

60.By s.10(2) of the Children Act 1989, the court may make a s.8 order with respect to any child on the application of a person who either is entitled to apply for a s.8 order with respect to the child, or has obtained the leave of the court to make the application. As explained below, neither S in the case of G, nor T in the case of Z, is entitled to apply for an order, and each therefore needs the court’s leave to make the application.

61.S.10(9) provides (in so far as relevant to this case):

“(9) Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to

(a) the nature of the proposed application for the section 8 order;

(b) the applicant’s connection with the child;

(c) any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it …”

62.It is well established that when considering an application for leave to apply under s.10(9), the court is not making a decision concerning the upbringing of the child, within the meaning of s,1, and thus the welfare of the child is not the court’s paramount consideration. On the other hand, it is equally well established that, in considering an application for leave, the court will consider the merits of the application and whether the applicant has an arguable case.

63.The case law on this point has recently been thoroughly re-examined by Black LJ in Re B (Paternal Grandmother: Joinder as Party) [2012] EWCA Civ 737 [2012] 2 FLR 1358 and as a result it is unnecessary to cite earlier authorities. In her judgment, Black LJ observed at paragraph 39:

‘It can be seen that section 10(9) does not contain anything in the nature of a test by which an application should be judged, nor even criteria which must be satisfied before leave can be given, nor is anything of the kind to be derived from the rest of section 10. Neither does the subsection circumscribe the factors that can be taken into account in determining the leave application; it leaves the court to take into account all the material features of the case and merely highlights certain matters which are of particular relevance’.

64.Later at paragraph 48 – 50, she continued:

’48. As I said earlier, I do not see section 10(9) as containing a test. By picking out some factors to which the court should have “particular regard”, it acknowledges by implication that there may be other factors which the court has to consider. It would be wrong, in my view, to try to list or limit these factors which will vary infinitely from case to case. One amongst them is plainly the prospects of success of the application that is proposed; leave will not be given for an application that is not arguable. I do not intend to attempt a definition of what is arguable but I would make a few observations before I leave the question of the proper approach to an application to which section10 (9) applies, whether directly or through an application to be joined as a party with a view to seeking the sort of outcome that could be the subject of a section 8 order.

49. The first observation is that the fact that a person has an arguable case may not necessarily be sufficient to entitle him or her to leave under section 10 or to joinder as a party. I say this because section 10(9) picks out other factors as requiring particular regard and I think it must follow that there may be situations in which, when the judge exercises his or her discretion, balancing all the relevant factors, the presence of an arguable case is outweighed by those other factors or, indeed, by any other factor that carries particular weight in the individual circumstances of the case….

50. The second observation is that there is room, in cases concerning children, for applications or proposed applications to be checked at a very early stage and without wholesale investigation. The court has a broad discretion to conduct the case as is most appropriate given the issues involved and the evidence available, see for example Re B (Minors) (Contact) [1994] 2 FLR 1, Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289, and Re N; A v G and N [2009] EWHC 1807 (Fam). Accordingly, some cases can appropriately be determined on submissions alone, for example. Furthermore, it is not always necessary for findings to be made in relation to all (or sometimes any) disputed facts, perhaps because the result does not depend upon them or because there are quite sufficient undisputed facts to form the foundation of the decision that needs to be taken.’

65.Thus Black LJ was emphasising that the court is free to take into account all relevant matters, including the s.10(9) factors, and that although the prospects of success are relevant they are not necessarily decisive. She also stressed that the grant of leave to make an application under s.10(9) does not lead inexorably to a full inquiry with an extensive fact-finding process. Furthermore, it is well established that the granting of leave under s.10(9) does not create a presumption in favour of a substantive order: Re A (Section 8 order: Grandparent application) [1995] 2 FLR 153;G v F (Contact and shared residence: Applications for leave) [1998] 2 FLR 533.

Human Fertilisation and Embryology Act 2008

66.The Human Fertilisation and Embryology Act 1990 introduced laws for the benefit of heterosexual couples who had children by assisted reproduction and artificial insemination. Thus, where a woman donated eggs to another, the Act provided that the carrying, rather than the donating, mother would have the status of legal parent. Similarly, where a child was conceived by a married woman using sperm donated by a man other than her husband, the status of legal parent was bestowed on the husband to the exclusion of the donor. The restriction of these provisions to heterosexual couples was attributable to the importance attached to “traditional” family values, which were also reflected in the provision that imposed as a condition of every licence granted to a clinic providing treatment an obligation not to provide treatment to a woman without considering the child’s need for a father. The 2008 Act reflected the significant social changes of the intervening years by not only replacing this latter requirement with a need to consider the need for “supportive parenting” but also extending the provisions concerning legal parenthood following donation to same-sex couples. A distinction remains, however, between, on the one hand, married couples and civil partners, and, on the other, unmarried heterosexual couples and same-sex couples who are not civil partners. In respect of the latter, the provisions bestowing legal parenthood only apply if the couple conceive at a licensed clinic and comply with certain formalities. In the case of couples who are civil partners, however, as with married couples, the status of legal parent is bestowed on the non-birth member of the couple irrespective of whether the child was conceived at a UK licensed clinic or elsewhere.

67.The provisions of the 2008 Act relevant to these applications are ss.42(1), 45(1) and 48(1), (2) and (5). S.42(1) provides

“If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership, then … the other party to the civil partnership is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).”

S.45(1) provides, in so far as relevant to this application:

“Where a woman is treated by virtue of section 42 … as a parent of the child, no man is to be treated as the father of the child.”

S.48, so far as relevant to this case, provides:

“(1) Where by virtue of section … 42 … a person is to be treated as the … parent of a child, that person is to be treated in law as the … parent … of the child for all purposes.

(2) Where, by virtue of section … 45 … a person is not to be treated as a parent of the child, that person is to be treated in law as not being a parent of the child for any purpose.

….

(5) Where any of subsections (1) to (4) has effect, references to any relationship between two people in any enactment, deed or other instrument or document (whenever passed or made) are to be read accordingly.”

68.At the time of F’s birth, S was, and therefore remains, her legal father, and therefore has the right under s.10(4) of the Children Act 1989 to apply for orders under s.8 of that Act. But for the reforms introduced by the Human Fertilisation and Embryology Act 2008, both S and T would have been entitled as of right to apply for s.8 orders in respect of G and Z respectively. As a result of those reforms, however, S and T are not the legal fathers of those children and therefore cannot bring an application for orders under s.8 without first obtaining the leave of the court.

Policy issues: Respondents’ submissions

69.It is a central feature of the argument advanced by Miss Russell on behalf of X and Y, and adopted and developed by Miss Fottrell on behalf of D and E, that the policy underpinning the reforms implemented in the 2008 Act is a material consideration for this court in determining the applications for leave under s.10(9).

70.It is manifestly clear that, by passing the 2008 Act, Parliament changed the law on donation to recognise lesbian parents as joint legal parents. Those provisions not only confer parenthood but also expressly eliminate the legal status of the man who is the biological father in such circumstances. Miss Russell submits that the provision that no man should be treated as the father ‘for any purpose’ affects the interpretation of every other legal enactment and private document and should be regarded as a fundamental and overriding provision. Miss Russell submits that Parliament could not have been more categorical about its intent to shelter recipient parents from any possible parental claim from a “donor”.

71.The respondents contend that, by providing that a man in the position of S and T is ‘not to be treated as the father for any purpose’, Parliament intended to protect families from precisely the type of conduct being demonstrated by the applicants in this case, which Miss Russell characterises as an “invasion of privacy and infringement of parental responsibility”. She argues that T’s application amounts to seeking a paternal role on the presumption that Z will benefit from the building of such a relationship with his biological father in addition to the relationship he has with his two existing legal parents. Miss Russell submits that the amendments to the law introduced by the 2008 Act represent a significant shift of policy away from the presumption that a child’s welfare is enhanced by the involvement of a father, towards an acknowledgment that alternative family forms without fathers are sufficient to meet a child’s needs.

72.Miss Russell submits that the effect of requiring “donors” in these circumstances to apply for leave is significant. Prior to the implementation of the 2008 Act, an applicant in the position of S and T was entitled to apply for contact as of right. Previous cases have been heard under a different legal framework in which the applicant man was the legal father and the welfare of the child was, from the outset, the court’s paramount consideration. In contrast, under the present application, the applicants are not legally the fathers of the children and welfare is not the paramount consideration of the court and the court is considering the section 10(9) criteria in the context of, and in conjunction with, the provisions of, and policy underpinning, the 2008 Act. Granting an applicant in these circumstances leave to apply for orders under s.8 would, she argues, seriously undermine that policy.

73.Miss Russell’s submissions on these issues of policy are adopted and developed by Miss Fottrell on behalf of D and E. She submits that the legislative intention and purpose behind section 42 of the 2008 Act was to ensure that what she describes as the ‘lesbian de novo family’ acquired legal status commensurate with the factual reality. She submits that the change in the legislation was “intended to avoid a legal hierarchy based on biology which denied legal status to both parents in a lesbian-led family”. She submits that it is incumbent on this court to have due regard to the legislative purpose as a relevant factor when considering the application for leave and that considerable weight should be attached to that factor for public policy reasons. Granting leave would have the effect of distorting the family relationships and frustrating the legislative intention. Through his application, S is seeking to elevate the genetic relationship in a way which is contrary to the provisions of section 45 of the 2008 Act. Miss Fottrell contends that ‘lesbian-led families formed through assisted conception are families of intention where biology is not determinative’. The 2008 Act provides legal recognition of this and the court must accommodate that legislative reform in any assessment of an application for leave under section 10(9) of the 1989 Act.

74.Miss Fottrell adds that, if the court is satisfied that (a) the application raises public policy considerations of some significance, and (b) a purposive reading of section 10(9) in the context of sections 42 and 45 of the 2008 Act does not support granting leave, it does not follow that those public policy considerations should be trumped by the fact that the applicant is entitled to pursue an application in respect of F. The court is powerless to prevent him from pursuing that application, whatever the merits and consequences. Miss Fottrell submits that the court ‘cannot ignore the legal reality in this case’. The fact that the court cannot stop S making the application in respect of F does not strengthen the merits of his case or entitle him to be given a ‘legal toehold’ in respect of G in a way which defeats the legislative intent.

75.Miss Russell and Miss Fottrell submit that the fact that the applicants are, in the respondents’ words, “known” donors does not undermine the importance of this policy consideration. S.42 expressly covers artificial insemination outside a licensed clinic and it is manifestly clear that Parliament intended civil partners conceiving with “known donors” at home to enjoy exactly the same protection of the law as those conceiving with “unknown donors” at licensed clinics.

Policy issues: Applicants’ response

76.In response to these submissions, Miss King deployed an extensive range of arguments, but her central submission can be simply summarised. She accepts that the effect of the reforms implemented by ss 45(1) and 48(2) of the 2008 Act was to remove the status of legal parent from a man who provides sperm for the artificial insemination of a woman in a civil partnership, but submits that this does not eradicate his status as a genetic parent who may, depending on the facts and whether or not he satisfies the criteria under s.10(9), be allowed by the court to apply for an order under s.8 of the Children Act in order to play a role in the life of the child. Although parental responsibility is vested exclusively in the mothers of the children, Miss King submits, relying on dicta of McFarlane LJ in Re W (Children) [2012] EWCA Civ 999, that with parental responsibility comes both authority and duty and argues that, as the legal parents to Z, part of the role assumed by X and Y involves making responsible decisions which meet the best interests of their child including permitting contact with his biological father. If they are unable to agree to do so, then, submits Miss King, the court must intervene on behalf of the child.

77.Miss King rightly submits that the starting point of any analysis of the concept of parenthood is the well-known passage in the speech of Baroness Hale of Richmond in Re G (Children) [2006] UKHL 43, [2006] 2 FLR 629. It is, I think, helpful to cite the passage in full:

‘[32] So what is the significance of the fact of parenthood? It is worthwhile picking apart what we mean by ‘natural parent’ in this context. There is a difference between natural and legal parents. Thus, the father of a child born to unmarried parents was not legally a ‘parent’ until the Family Law Reform Act 1987 but he was always a natural parent. The anonymous donor who donates his sperm or her egg under the terms of the Human Fertilisation and Embryology Act 1990 is the natural progenitor of the child but not his legal parent: see ss 27 and 28 of the 1990 Act. The husband or unmarried partner of a mother who gives birth as a result of donor insemination in a licensed clinic in this country is for virtually all purposes a legal parent, but may not be any kind of natural parent: see s 28 of the 1990 Act. To be the legal parent of a child gives a person legal standing to bring and defend proceedings about the child and makes the child a member of that person’s family, but it does not necessarily tell us much about the importance of that person to the child’s welfare.

[33] There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child’s welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is ‘his’ child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child (see, for example, the psychiatric evidence in Re C (MA) (an infant) [1966] 1 WLR 646). For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.

[34] The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child’s mother, whereas the mother who provided the egg is not: 1990 Act, s 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.

[35] The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child’s needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase ‘psychological parent’ gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (Free Press, 1973), who defined it thus: ‘A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child’s psychological needs for a parent, as well as the child’s physical needs. The psychological parent may be a biological, adoptive, foster or common law parent.’

[36] Of course, in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique. In these days when more parents share the tasks of child rearing and breadwinning, his contribution is often much closer to that of the mother than it used to be; but there are still families which divide their tasks on more traditional lines, in which case his contribution will be different and its importance will often increase with the age of the child.

[37] But there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare. Adoptive parents are the most obvious example, but there are many others….’

78.Miss King, supported by Miss Reardon, submits that the potential importance of genetic parenthood is not automatically extinguished by the removal of the status of legal parenthood. In response to the argument that, because the legislative changes in the 2008 Act were designed to place a same sex female couple who received treatment or donated sperm in the same protected position as a married couple, their status as parents should be exclusive and their parental authority absolute, Miss King asserts that the legislation can and does achieve the goal of recognising that partners of the same sex can both be parents without as a consequence entirely shutting out the biological fathers.

79.Miss King submits that social and psychological relationships amounting to parenthood can and often do co-exist with legal parenthood. In some circumstances, a legal parent may not have a day to day relationship with a child whereas a person with a significant social or psychological relationship may be a stable and constant presence whilst lacking the status of a legal parent. Miss King submits that to contend for the notion that a biological father has an inherently higher test to meet than would others who are not legal parents to the subject child is to ignore the fact that leave to apply is only ever required when the applicant is not the legal parent. No person is absolutely excluded from seeking redress, although, save in certain defined circumstances, an application for redress cannot be made without the court’s leave. Miss King reminds me that this is the position faced by biological fathers without parental responsibility in other circumstances(see Re H (illegitimate Children: Father: Parental Rights) (No 2) [1991] 1 FLR 214), and also by step-parents (Re H (Shared Residence: Parental responsibility) [1995] 2 FLR 883 and Re A (Joint residence/Parental responsibility) [2008] 2 FLR 1593) and same-sex partners who have no biological relationship with the subject child but are playing the role of the parent (G v F (Contact and Shared Residence: Application for Leave [1998] 2 FLR 799). Miss King submits that biological fathers who are deprived of legal parenthood by the 2008 Act should be treated no differently.

80.Miss King submits that, had Parliament intended that a person in the position of the respondents in this case should be entirely stripped of legal remedies, it would have expressly provided that a progenitor in these circumstances would be disqualified even from seeking the court’s leave. In the absence of such an express provision, the policy considerations advanced on behalf of the respondents should not be used to trump or outweigh the statutory criteria for granting leave under s.10(9).

81.In developing Miss King’s arguments on this point, Miss Reardon submits that the terms of s.42 of the 2008 Act do not limit a child’s parentage to the two mothers in anything but the strictest legal sense. Therefore, she argues, the Act cannot operate as a blanket ban on any application by a biological father. The fact that the terms of the 2008 Act require that a man in a position of S and T ‘is to be treated in law as not being a parent of the child for any purpose’ is a very different thing from excluding him from making an application for leave to apply for an order under s. 8 of the Children Act. In fact, she submits, biological parents who are not legal parents continue to be treated as the parents of their children for a number of purposes, for example in order to obtain information about a genetically-related medical condition, or to provide the child with an understanding of his biological heritage and identity.

82.In a further strand of their submissions, Miss King and Miss Reardon contend that, if the court were to refuse the applications for leave to apply for orders under s.8 on the basis of the policy issues identified by the respondents, it would infringe the human rights of S and T, and indeed of G and Z, under the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular article 6, the right to a fair trial, and article 8, the right to respect for private and family life.

83.What are the human rights of S and T in these circumstances? The question whether a biological parent has a right to respect for family or private life has been considered most recently by the European Court in Anayo v Germany [2010] ECHR 20578/07 [2011] 1 FLR 1883, a case that concerned an application for contact by a biological father of twins born to a woman who was living with her husband. The Court said inter alia at paragraphs 56 to 58:

‘[56]. However, a biological kinship between a natural parent and a child alone, without any further legal or factual elements indicating the existence of a close personal relationship, is insufficient to attract the protection of Article 8 ….

[57]. Moreover, the Court has considered that intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases in which the fact that family life has not yet fully been established was not attributable to the applicant …. In particular, where the circumstances warrant it, “family life” must extend to the potential relationship which may develop between a child born out of wedlock and the natural father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth ….

[58]. The Court further reiterates that Article 8 protects not only “family” but also “private” life. It has been the Convention organs’ traditional approach to accept that close relationships short of “family life” would generally fall within the scope of “private life”….’

On the facts of that case, the European Court concluded:

‘[62]. Having regard to the foregoing, the Court does not exclude that the applicant’s intended relationship with his biological children attracts the protection of “family life” under Article 8. In any event, the determination of the legal relations between the applicant and his biological children here at issue – namely the question whether the applicant had a right of access to his children – even if they fell short of family life, concerned an important part of the applicant’s identity and thus his “private life” within the meaning of Article 8(1). The domestic courts’ decision to refuse him contact with his children thus interfered with his right to respect, at least, for his private life.’

84.Miss King submits that the issue of whether the applicant has rights which should be protected is a matter of fact and degree and that, on the facts of this case, while T does not enjoy the status of legal parent, he does have article 8 rights in respect of his relationship with Z. She further submits that, to enforce those rights, T has a right under article 6. Furthermore, Miss King submits that Z has corresponding rights both under article 8 to respect for his private and family life with T and under article 6 for a fair hearing in respect of those rights. In considering the extent to which Z’s article 8 rights are engaged, Miss King relies on dicta of Scott Baker J (as he then was) in Rose v Secretary of State For Health and Human Fertilisation and Embryology Authority[[2002] 2 FLR 962, including (at paragraph 45):

‘Respect for private and family life requires that everyone should be able to establish details of their identity as individual human beings. This includes their origins and the opportunity to understand them. It also embraces their physical and social identity and psychological integrity.’

85.Miss King submits that the grant of leave to apply for contact is necessary to protect the human rights of both T and Z. To deny T the opportunity at least to pursue an application when it is clear that in Miss King’s phrase, the respondents ‘intend to expunge him from Z’s life’ would be a clear breach of their article 8 and 6 rights. Miss Reardon adopts this submission on behalf of S.

86.Miss King cited a number of other authorities in support of her legal submissions concerning the policy issues raised by the applicants. I mean no disrespect to Miss King in concluding that it is unnecessary to consider those authorities in this judgment. In addition, for reasons explained below, I do not think it necessary or appropriate to accept Miss King’s invitation to review the reports of the Parliamentary proceedings leading to the passing of the 2008 Act.

87.Ultimately, the cases advanced on behalf of the applicants focus on the facts. Central to the case advanced on behalf of the applicants is the argument that each case is fact specific. They submit that the policy considerations underpinning the 2008 Act do not entitle or oblige the court to refuse an application for leave in every case. In some cases, it will be appropriate to grant a genetic or psychological parent leave to apply for contact, in others not. In support of this submission, Miss King relies on the decision of the Court of Appeal in A v B and C (Lesbian Co-Parents: Role of Father) [2012] EWCA Civ 285 [2012] 2 FLR 607. In that case, both Thorpe LJ and Black LJ (at paragraphs 23 and 39 respectively) stressed that decisions in disputes between two female parents and a male parent are “so fact specific’. As a result, Black LJ concluded that ‘this is an area of law in which generalise guidance is not possible’. Miss King acknowledges that A v B and C was a case in which the biological father was entitled to apply for contact as of right and the court was thus applying the paramountcy principle. She submits, however, that the observations of the Court of Appeal support the argument that the court should adopt a fact-specific approach to the application for leave in this case, rather than attaching any significant weight to the policy considerations identified by the respondents.

Submissions on s.10(9) criteria and merits in the case of G

88.I now turn to consider the submissions on s.10(9) and merits in each case, starting with the case of G.

89.Dealing with the factors under s.10(9), Miss Reardon on behalf of S submits, so far as the nature of the application is concerned, that the proposed application involves issues of enormous importance for G in terms of his identity, his relationship with his biological father and the role which his biological father will play in his life. It is a serious and necessary application. She submits that he is the only person who can offer the children something which all three adults thought was important when they decided to take steps to conceive: a relationship with their other biological parent, and a knowledge of their biological identity, their background and their wider paternal family. It is his case that it is plainly in both children’s short, medium and long-term best interests that they should grow up knowing and having a relationship with their father, albeit that their primary home will continue to be with their two mothers.

90.As for his connection with the child, Miss Reardon relies on the fact that S is G’s biological father and the biological and legal father of his sister, whilst acknowledging that the reported authorities make it clear that neither the legal status of parenthood, nor biological parenthood, is determinative when it comes to issues concerning the care and upbringing of children. It is S’s case that it was envisaged that he would have a significant connection with both children. There was no formal or written agreement, and there is considerable dispute about what words were actually used on both sides. He is clear that it was never agreed that he would have no parental title or role, as the respondents now allege. As quoted above, he says in his statement: ‘had E or D ever expressed terms as harsh and stark as these, I would certainly have refused to be involved’. Miss Reardon rightly says that this is not an issue which can be resolved at this stage in the proceedings, and submits that, in the context of the application for leave, the court should proceed on the basis that the applicant’s version of events is or may well be correct.

91.What is not disputed, however, is that after F was born, S saw her, and subsequently G, regularly. The children met a number of members of their paternal family, including S’s mother, siblings, nephews and nieces. They have also met a number of members of T’s family. Miss Reardon cites what she describes as a significant inconsistency in the respondents’ case as it is now put. They say now that they were uncomfortable with the applicant’s regular presence in their home and in the children’s lives; but not only did they acquiesce in this for a period of some 2 ½ years, they also proceeded with a second pregnancy with S, without, even on their case, any significant attempt to re-negotiate the arrangements. Furthermore, the change in the law did not lead D and E to seek a different arrangement for contact with G. Miss Reardon submits that, even on the respondents’ own case, the difference in legal parentage, to the extent that they understood it, does not seem to have assumed particular significance in terms of the situation on the ground and their expectations of the applicant’s role.

92.Miss Reardon argues that there is little evidence that G’s life would be disrupted by the application itself, still less that he would be harmed. She also makes the point that, in this case, there are in any event existing proceedings relating to F and therefore there is no realistic prospect of additional disruption resulting from the application in respect of G proceeding.

93.It is S’s position that he has a good arguable case, given his connection with the child, and the history of contact that took place over a considerable period of time. Furthermore, Miss Reardon points out that, in the present cases, many of the arguments put forward by all the respondents are in fact welfare arguments. These are arguments which can be put into the balance at a substantive hearing. On behalf of S, it is contended that it cannot be right that the respondents should be entitled to rely on these assertions, on welfare grounds, without a full investigation of their merits and without the applicant also being entitled to put forward his arguments as to why an ongoing relationship with him would be in the child’s interests.

94.Miss Reardon relies, of course, on the fact that S has also made an application for contact and parental responsibility in respect of his daughter F, now four years old. Because of the date of F’s conception, S is not only her biological father but also her legal parent, and he does not require leave to apply for orders in respect of her. Miss Reardon submits that the fact that there are already ongoing substantive proceedings in respect of F is a powerful, if not compelling, argument in favour of granting leave to the applicant to apply in respect of G. Miss Reardon points out that D and E accept in their evidence that they consider the two children to be ‘full siblings’, not just in a psychological context (the same two mothers) but also in terms of their biological parentage. That the two children should be biological full siblings is something that was important to the respondents. They specifically wanted the applicant to father their second child because he had fathered their first. Furthermore, these children are very close in age. There has been no distinction between the children in terms of their contact with the applicant. These children will, the respondents accept, be brought up knowing the truth of their biological parentage. Miss Reardon contends that these factors add considerable force to the argument that, when the time comes for the court to consider the exact role in which the applicant should play in F’s life, it would be wholly artificial, and not in the interests of either child, for G to be excluded from that process. To proceed with the application in respect of F, but to exclude G from that application, flies in the face of common sense, particularly as it seems unlikely that the respondents will suggest that the issue of contact should be approached in a different way for each child because of their differing legal parentage.

95.In reply, dealing with the s.10(9) criteria, and considering first the nature of the proposed application, Miss Fottrell draws attention to the fact that S seeks leave to apply for contact and residence orders. He amended his application to include a prohibited steps order to prevent the mothers from removing the children permanently from the jurisdiction. It is, says Miss Fottrell, highly significant that S has applied for residence of the child in order to gain parental responsibility. Furthermore, the contact sought is regular and unsupervised. Miss Fottrell argues that the applicant has taken an entirely disproportionate and worrying approach in his applications. He is seeking to make applications that are completely undermining of the autonomy of the family unit. She submits that his aim is to achieve recognition of himself as the father of the children. It is clear that he is most interested in acquiring the status of G’s father with the world at large.

96.So far as S’s connection with the child is concerned, Miss Fottrell submits that it was the express agreement between the parties was that the mothers would be the sole parents of the child and contends that S has a genetic relationship with G which has no legal status or social dimension. She contends that, in so far as S has sought to characterise his relationship with the child as being that of a father, and the time that he has spent with the child as being ‘contact’, he has exaggerated his relationship both as to the quality of it and its nature. D and E have full and busy lives in which they spend considerable amount of time with friends. Their children are always present. It is in that context that the applicant has seen and been in the presence of the child. He has never cared for the child. He has no role in his daily life. He is not part of the child’s family in any sense. To the child and the outside world the applicant is no more than a family friend. So far as quantity of contact is concerned, although S saw the children fairly regularly at an earlier stage, he has only seen them twice in the past 12 months. As a matter of fact, therefore, the applicant’s connection with the child, which was limited in any event, has waned.

97.As for the risk of harm to G caused by disruption of his life, there is, submits Miss Fottrell, weighty evidence that the application has had a significant and detrimental impact on the child’s carers. She points to evidence, summarised above and which counsel characterises as “compelling”, of the stress and anxiety caused to them and by implication to the family unit by the application There is, she continues, a high degree of disharmony and resentment between the parties. The continuation of the application will increase the emotional tensions and their impact on the respondent, which would not be beneficial to the child. The hostility significantly reduces the prospects of the applicant succeeding in any of his applications. That in itself can be reason to refuse leave, as per Re A (A Minor) (Contact; Leave to Apply) [1995] 3 FCR per Douglas Brown J in which leave was refused to a grandmother owing to the long standing serious disharmony in the relationship between her and a child’s parents. Rather than respect the mother’s desire to maintain their family form as initially agreed, S has undermined the family and has sought to force a legal recognition of himself as an ‘additional’ parent. It is thus submitted on behalf of D and E that, while the application is presented as a benign attempt to offer himself as an additional parent, the court must have regard to the fact that it will take away from the status of the lesbian-led family which will impact ultimately on G.

98.D and E do not accept that S’s application for leave to apply for an order in respect of G is strengthened by reason of the fact he is pursuing as of right an order in respect of F. Miss Fottrell submits that the fact that the respondents are unable to prevent the applicant from seeking orders in respect of F, notwithstanding the disruptive and disturbing effect of those applications on the family unit, is not a reason to permit him to pursue similar applications in respect of G. As a result of changes to the law, the legal status of the applicant in respect of G is different from his legal status in respect of F. That is the consequence of the application of the statute and it is submitted that it cannot be overridden by what Miss Fottrell describes as a simplistic assertion that the children should be treated the same when as a matter of law they are in starkly different positions. Furthermore, while the applicant does not occupy any more central a role in F’s than he does in G’s life, he has, it is submitted, spent more time with F in the context of the his friendship with D. In contrast he has spent very little time with G who is, it is submitted, a stranger to him.

99.Finally, considering the merits of the application, Miss Fottrell submits that it is important to note that the respondents have agreed to twice yearly contact between the child and the applicant, a level which is, she asserts, consistent with that occurring in similar cases. This demonstrates that they are willing to contemplate some limited contact. The mothers having conceded the principle of contact, the quantum should be left to their discretion. In those circumstances, the court should refrain from allowing S to intrude into the family’s lives through the proposed application.

Submissions on s.10(9) criteria and merits in the case of Z

1. Dealing with the first factor under section 10(9)(a), Miss King on behalf of T argues that, when the court considers the nature of the proposed application, the application before the court is for contact and contact only. Miss King contends that this will be the only application that the court is asked to determine. ‘Any suggestion that this is a precursor to, or a Trojan horse, for a residence order application is strenuously denied’. Having said that, Miss King points out that, had T sought to apply for leave to apply for residence order, in order to acquire parental responsibility, he could have done so. However, respectful of the status of X and Y and aware of their anxieties and the ‘totemic significance’ of parental responsibility to them, T has elected not to make that application. In Miss King’s phrase, ‘he is not challenging the respondents’ place in Z’s life, merely seeking the continuation of one for himself’.
2. Turning to the next factor under s.10(9)(b), T’s connection with the child, Miss King acknowledges that there are many factual issues between the applicant on the one hand and the respondents on the other that cannot be resolved without a full hearing. Prior to the birth of Z, it had been agreed between X, Y and T that there would be some contact between T and the child, although the parties are not ad idem as to the level of contact that was anticipated. Miss King relies on the frequency of contact that actually took place in the first 18 months of Z’s life and submits that that was a reflection of the agreed role that he would play during Z’s childhood and an indication of the fact that he was to be a ‘social parent’ to Z, involved in his life, known to be his biological father, present for major events such as birthdays, and occupying a significant role in his life. Miss King submits that the fact that contact took place on over 50 occasions in the first 18 months of Z’s life, is a material consideration for the court in determining whether to grant him leave to apply for contact at this stage.
3. Central to Miss King’s argument is the assertion made by X and Y that it was their intention that T would be a role model for Z. Miss King submits that this phrase indicates that it was acknowledged that the connection between T and Z would be significant. Miss King submits that it is significant that X and Y chose a friend to donate sperm to enable them to conceive a child. At the time of the conception, it was understood that his role would be far more than merely a sperm donor. Miss King submits that, by now using the phrase “sperm donor” to describe T, by saying that he is a “stranger” to Z, and denying that he is a positive role model, X and Y are distorting the facts and showing a lack of respect for T’s role. Miss King submits that, on the facts of the case, T is neither an unknown donor nor a known donor. His role has been greater than either of those terms suggests.
4. There is another aspect of T’s connection with Z on which Miss King relies, namely T’s racial and cultural origins. She refutes the suggestion made by X in her statement that making this submission is to “play the race card”. T’s racial and cultural origins are half of Z’s genetic constitution and a significant aspect of his background and heritage.
5. So far as the risk of disruption to Z’s life is concerned, the third factor in s.10(9), Miss King concedes that the court proceedings are inherently stressful and that there will be pressures as a result. On the other hand, it is T’s case that X and Y are capable parents and will do what they can to shield their son from the exigencies of proceedings.
6. Finally, Miss King deals with the merits of T’s proposed application for contact. She submits that an evaluation of the merits of this case is difficult without an exploration of the facts to allow for an informed and case-specific evaluation of where Z’s welfare lies. To reject the leave application would be to deprive Z of a proper examination of the issues raised and facts relied on by the respective parties. In so far as an applicant for leave is required to demonstrate ‘an arguable case’ or ‘a good arguable case’, Miss King submits that T’s case manifestly satisfies this requirement.
7. In reply, Miss Russell makes the following submissions directed to the s.10(9) criteria. Beginning with the nature of the proposed application, Miss Russell points out that it is the express intention of T that he wishes to instigate a contact regime with a view to enabling him to build a parent-child relationship with Z. She argues that, even if X and Y had agreed to such a role, it is not possible for such an agreement to be enforced or for the court to grant an order bestowing a paternal role on the applicant. At most, any agreement that may be made by the parties at an earlier stage is only evidence as to their intent as to what informal arrangement would be entered into. It is the case advanced by X and Y that they entered into a known donation arrangement with T anticipating that he would provide the child with a sense of his identity and a positive male role model. Miss Russell submits that the nature of his proposed application, namely to allow T to build a relationship with the child, is inappropriate in that it seeks to develop a parental relationship which will threaten the respondents and is entirely inconsistent not only with their autonomy as the nuclear family but also the provision of the statutory framework that Parliament has set down for the regulation of familial relationships when children are conceived by sperm donation.
8. Miss Russell questions the good faith of T – and for that matter S – in their conduct in this matter. Drawing attention to the parallel difficulties that exist in the two cases, she argues: ‘it could be said to provide prima facie evidence of a pattern of behaviour whereby the applicant and his partner have sought to conceive children on the basis of, at worst, a deception and, at best, a negligent failure to communicate their intentions. Had they wished to conceive children as actively involved fathers, they could either have arranged a surrogacy or adopted’.
9. So far as the applicant’s connection with the child is concerned, Miss Russell submits on behalf of X and Y that T does not currently have a significant legal or welfare connection with Z, nor any significant attachment. She argues that the court will need to have a soundly based reason for finding that the introduction of T in a significant parental role was in the child’s interests, consistent with a legislative framework and that any disruption was proportionate to his needs and his right to privacy and family life. She urges that T’s application and evidence does not demonstrate such proportionality. Although there was a period of time when T had regular visits to Z, Miss Russell points out that as a matter of fact, there has been no contact since March 2012. Furthermore, she contends that T’s assertion that Z demonstrated a ‘definite and obvious bond’ at the last contact visit betrays his lack of knowledge of the child.
10. Turning to the likelihood of the application disrupting Z’s life such as to cause him harm, X and Y are very concerned that allowing the application to proceed will significantly disrupt his life such as to cause him harm. Their concerns are based on their experience of T’s behaviour since Z’s conception and throughout his life, as described in the passages from their statements quoted above. T’s inability to respect X and Y as Z’s parents has been the cause of the difficulties between the parties and illustrates his continued refusal to accept the reality of the position in law. Miss Russell acknowledges that X and Y have made significant efforts to appease T’s increasing demands but submits that this was for the purposes for avoiding disputes and argues that the court should not view those efforts to avoid legal proceedings either as evidence of their willingness for such contact to take place, nor hold it against them as amounting to a reason for granting permission to apply. Miss Russell adds, however, ‘ironically, had T conducted himself differently, it is likely that the respondents would have felt able to facilitate a more significant level of contact than has proved possible.’
11. Miss Russell refers to the stress on the family brought about by his behaviour after the birth when X and Y found themselves under persistent pressure to arrange contact at his convenience. Miss Russell observes that protecting the primary family unit, and the position of the non-birth mother, from disruption has been a concern in previous sperm donor dispute cases where it was a consideration relating to the child’s welfare. In relation to this leave application, where the court is explicitly required by section 10(9) to consider the potential disruption of the application to the child’s life, more significant weight should be attached to this factor at this stage where welfare is not the paramount consideration.
12. In considering the merits of the application and the prospects of success should leave be granted, Miss Russell argues that the contact sought by T of unsupervised contact on alternate weekends is “wholly unrealistic (and not in the interests of the child)”. She submits that T would not have an arguable case if given leave to apply for contact.
13. In conclusion, Miss Russell submits that the granting of leave would convey to T the message that he has the ‘rights’ he is seeking to pursue and enforce as a paternal figure with a significant and ever extending role to play, that it would disrupt both the factual and legal basis of Z’s safe and secure family life, and undermine their security. ‘The establishment of a relationship with T is not legally appropriate, will provide little or no benefit in terms of Z’s welfare and is disproportionate as it is largely meeting the needs of the applicant.’

Discussion

1. I accept the submission put forward on behalf of the respondents to these applications that the reforms passed by the Human Fertilisation Embryology Act 2008, and the policy underpinning those reforms, are material considerations for this court in determining this application for leave under section 10 of the Children Act 1989. The effect of sections 42(1), 45(1) and 48 (2) of the 2008 Act is that S and T are not to be treated in law as the parents of, respectively, G and Z for any purpose. I endorse the submissions that the policy underpinning these reforms is an acknowledgement that alternative family forms without fathers are sufficient to meet a child’s need. It is now established beyond doubt that the relationship between a same-sex couple constitutes ‘family life’ for the purposes of article 8: see Schalk and Kopf v Austria [2010] ECHR 995. Thus, D, E, F and G have a family life together, as do X, Y and Z, that is entitled to respect under article 8. Thousands of children in this country are being brought up happily and successfully by same-sex couples. ‘As the usages of society alter, the law must adapt itself to the various situations of mankind’ (per Lord Mansfield in Barwell v Brooks (1784) 3 Doug. 371).
2. To my mind, the policy underpinning sections 42(1), 45(1) and 48(2) of the 2008 Act is simply to put lesbian couples and their children in exactly the same legal position as other types of parent and children. This is in my judgment the clear intention of Parliament. I do not see any ambiguity in the wording of the Act which, under the rule in Pepper (Inspector of Taxes) v Hart[1993] AC593, is required to justify the court considering reports of recordings in Parliament as an aid to statutory interpretation.
3. Any person who seeks a s.8 order in respect of that child against the wishes of such parents must obtain the leave of the court which will consider all relevant matters including the factors identified in s.10(9) as explained by Black LJ in Re B (Paternal Grandmother: Joinder as Party). As part of that analysis, the court will consider the rights of legal parents to family life including the right to make decisions about their children. Those rights are widely recognised both as a long standing principle of English law and under article 8. In this regard, the position of a lesbian couple who have been granted the status of legal parents by the 2008 Act is exactly the same as any other legal parent. Having taken those rights into account, however, it is still open to the court, after considering all relevant factors, to grant leave to other persons to apply for section 8 orders. In this regard, the position of biological fathers who have been deprived of the status of legal parent by the 2008 Act is the same as any other person.
4. As a matter of law, Miss Russell and Miss Fottrell are right to describe S and T as strangers to G and Z. But in another sense, they are not strangers. As a result of choices made by the respondents, both S and T had regular and frequent contact with G and Z respectively. D and E chose S, an old friend of D’s, who lived 100 yards or so away, to provide sperm to enable them to conceive a child. They involved him in preparations before the birth. They invited him to see the new baby, F, immediately after birth and thereafter on a regular basis. When they decided to try for another child, they asked him to provide sperm again. They wanted their second child to have the identical genetic background to their first. Again, they involved S in the preparations before the birth and allowed him regular and frequent contact thereafter. I acknowledge that D and E say that, in some respects, they were acting under a degree of pressure when they involved S in those preparations and arranged the regular and frequent contact with the children, but the fact remains that, for whatever reason, they did involve him in this preparation and did allow him contact. Equally, D and E challenge the quality of the contact S had with F and, in particular, G, saying that, when he visited the home, it was mainly to pay a social call on his old friend D. S does not accept their evidence on these points. Irrespective of the truth about these issues, which can only be resolved after a substantive fact-finding hearing, it is clear, on either version and irrespective of the legal position, that S was not as a matter of fact a stranger to the children. Furthermore, although again no finding on the point can be made without a substantive hearing, it is in my judgment arguable that the relationship that D and E allowed S to develop with the children was linked in some way to their biological relationship.
5. Equally, X and Y, having met T through D, E, and S, and being fully aware of the degree of involvement S had in F’s life, selected T to provide sperm to enable them to conceive a child, and subsequently allowed T frequent and regular contact on over 50 occasions in the first 18 months of Z’s life. Again, X and Y assert that they were to some extent put under pressure by T to allow that level of contact. They too challenge the quality of the contact. Again, T does not accept their arguments on these points. Again, irrespective of the truth of those issues, which can only be resolved by a substantive fact-finding hearing, and irrespective of the legal position, T is not a stranger to Z. Further, it is to my mind again arguable that the relationship that X and Y allowed T develop with Z was linked in some way to their biological relationship. In their case, it is also significant that they expressly wanted T to be a role model for Z. They could, of course, have chosen any of their relations or other friends to be a role model, but the fact is that they chose T, the biological father of their child, for that purpose. Although no finding can be made without a substantive hearing, it is at least arguable that their choice of T as a role model for Z was again linked to their biological relationship.
6. By choosing friends, S and T, to provide sperm to enable them to conceive children, and by allowing them to have regular and frequent contact and to place some role (albeit disputed) in the lives of their families, D and E in one case, and X and Y in the other, were exercising their parental responsibility to facilitate some sort of relationship between their children and their biological fathers. This illustrates the true effect of the reforms implemented in sections 42 (1), 45 (1) and 48 (2) of the 2008 Act. D and E, and X and Y, have been granted full and inclusive parental responsibility for G and Z, to the exclusion of the biological fathers. They consciously exercised that responsibility by allowing S and T regular contact with the children. The 2008 Act empowered them to take this course. It did not deny them the right to do so. No doubt there will be some lesbian couples who, after having children by artificial insemination, not only allowed the biological fathers to have contact with the children but also encouraged them to play a full parental role and be recognised as fathers. The 2008 Act denies the biological father the status oflegal parent, but it does not prevent the lesbian couple, in whom legal parenthood is vested, from encouraging or enabling the biological father to become a psychological parent. On the contrary, it empowers the lesbian couple to take that course as the persons in whom parental responsibility is vested.
7. Accordingly, I reject the respondents’ submissions that granting leave to the applicants would have the effect of frustrating the legislative intention behind the 2008 reforms. I accept Miss King’s submissions that the potential importance of genetic and psychological parenthood is not automatically extinguished by the removal of the status of legal parenthood, and that social and psychological relationships amounting to parenthood can and often do co-exist with legal parenthood. She is correct that no other person is absolutely excluded from seeking redress and I accept her submission that biological fathers who are deprived of legal parenthood by the 2008 Act should be treated no differently. Had Parliament intended that a person in a position of the applicants in this case should be entirely stripped of legal remedies, it would have expressly provided that a person in the position of S and T in these circumstances would be disqualified even from seeking the court’s leave.
8. Furthermore, whilst following the decision in Anayo v Germany, that a biological kinship between a natural parent and child alone will be insufficient to attract the protection of article 8 of ECHR, it is plainly arguable that the relationships which D and E allowed S to establish with G, and which X and Y allowed T to establish with Z, amount to ‘family life’, or alternatively fall within the scope of ‘private life’, so that a refusal to allow the applicants at least permission to apply for orders under section 8 of the Children Act would amount to a breach of their rights under article 6 and 8.
9. I further accept Miss King’s submission, supported by Miss Reardon, that this court must adopt a fact-specific approach to these applications for leave, by a careful scrutiny and application of the factors under section 10(9), and considering the merits of the proposed applications as required by case law. I therefore turn to consider the application of the criteria under section 10(9), starting with S’s application for leave to apply in respect of G.
10. In this case, S applies not only for contact but also for ‘parental responsibility/joint residence’. He seeks a parental responsibility order in respect of F but, as he is not the legal father of G, he is unable to apply for such an order in his case, and thus can only acquire parental responsibility for G if he is granted a residence order. Miss Reardon describes this as a ‘serious and necessary’ application because S is the only person who can offer both G and F something which all three adults thought was important when they decided to take steps to conceive, namely a relationship with their other biological parent, and a knowledge of their other biological identity, background and wider paternal family. To my mind, however, there is considerable force in Miss Fottrell’s submission that the application for residence is disproportionate and that the effect of the application, intentionally or otherwise, maybe to undermine the autonomy of the family unit. I do not, however, consider that the same concerns arise if he is given leave to apply for a contact order.
11. So far as S’s connection with G is concerned, I find that, in addition to his biological link, it was envisaged by all parties that there would be a degree of contact between S and the children. I am not in a position to resolve the significant factual disputes between the parties, in particular whether the three conditions which D and E assert were made clear from the outset, were ever mentioned. That factual dispute could only be resolved at a substantive hearing. Even if those three conditions were mentioned, however, the conduct of all the parties before and after the birth of F, and before and after the birth of G, indicates that it was agreed that S would have some connection with the children and some role in their lives. As a matter of fact, S had regular contact, even though the quality of that contact is in dispute. I am not persuaded that the interruption in contact in the last year or so has materially weakened the connection between S and G.
12. I accept Miss Reardon’s submissions that the fact that there were already ongoing substantive proceedings in respect of F is a compelling argument in favour of granting leave to the applicant to apply in respect of G. Both children will be brought up knowing the truth of their biological parentage. I agree that, when the time comes for the court to consider the exact role which the applicant should play in F’s life, it would be wholly artificial, and not in the interests of either child, for G to be excluded from that process.
13. I do accept Miss Fottrell’s submission that there is prima facie evidence that these proceedings will cause stress and anxiety for D and E and that this is likely to impinge upon F and G if leave is granted. Overall, however, I do not consider that the likely disruption, and the risk of harm, is so great as to outweigh other factors. This court will endeavour to manage the case in a way that ensures that the risk of harm to Z is minimised. In any event, I do not consider that the grant of leave to pursue an application in respect of G will significantly add to the stress that will arise as a result of the ongoing application in respect of F.
14. Turning to the merits of this case, I do consider that S has a good arguable case for a contact order although not, in my judgment for any form of residence order. As stated above, the fact that there are ongoing substantive proceedings in respect of F is a powerful argument in favour of granting leave to S to apply in respect of G.
15. In the second hearing of the application in respect of G, Miss Fottrell informed me that D and E had now reverted to their earlier position and conceded that there should be some contact between S and their children. Miss Fottrell argued that the mothers having conceded the principle of contact in this case, the court should respect their autonomy by leaving the decision as to the quantum of an arrangement for contact to be determined by the mothers in their exercise of their parental responsibility. I have considered that argument carefully but ultimately concluded that it should not preclude the court from granting S leave to make an application for contact, although it may in due course curtail the scope of those proceedings.
16. I turn to consider the application of the s.10(9) criteria in the case of Z. So far as the nature of the proposed application is concerned, T’s application is only for contact and on his behalf Miss King insists that he does not wish to use this application as a way of challenging the respondents’ place in Z’s life. On behalf of X and Y, this assertion is challenged by Miss Russell who goes so far as to accuse both T and S of conduct amounting to bad faith. It is of course possible that, after the court has conducted an analysis of the substantive issues in the case, it may conclude that, applying welfare principles, it is not in Z’s interests to have contact at the level sought by T or, even, any contact at all. It may be that the court concludes that such contact would be disruptive and harmful to the child. But in my judgment that is not a reason for not allowing T to apply for some form of contact.
17. So far as T’s connection with Z is concerned, Miss King is right to say that there are many factual issues on this point which cannot be resolved without a full hearing. On any view, however, the level of contact which X and Y allowed T to have with Z in the first 18 months of Z’s life, amounting to over 50 visits, was relatively high, and sufficient in my mind by itself to demonstrate a significant connection between T and Z, in addition to the biological link, which includes links to Z’s racial and cultural heritage. To my mind, it is also highly significant that X and Y accept that they intended that T would be a role model for Z. On the facts of this case I accept Miss King’s submissions that T was more than a mere ‘known donor’. I am not persuaded that the interruption in contact in the past ten months significantly affects the connection between T and Z for the purposes of section 10(9). Even if, as Miss Russell submits, T is exaggerating when he speaks of a ‘definite and obvious bond’ with Z, I conclude that overall there is evidence of a connection between T and Z and that this is a strong argument for at least permitting the application for contact to be made.
18. I accept that, by allowing the application for contact to proceed, I will be introducing an element of disruption into Z’s life. I accept that X and Y have been placed under stress as a result of these proceedings and that this stress is likely to continue and to impinge on Z if the application proceeds. I accept Miss Russell’s submission that protecting the primary family unit, and the position of the non-birth mother, from disruption is a relevant factor under section 10(9). On the other hand, I do not consider, on the facts of this case, that the likely disruption, and the risk of harm, is so great as to outweigh other factors. Again, careful case management will minimize the risk of that harm.
19. Turning to the merits of T’s application, I accept Miss King’s submission that, whilst it is impossible to form a clear view given the extent of factual dispute between the parties, T does seem to have a good arguable case that he should at least have some form of face to face contact with Z. On the other hand, to my mind there is considerable force in Miss Russell’s submission that the level of contact sought by T – unsupervised contact on alternate weekends – is wholly unrealistic. In my judgment, however, that should not prevent the court granting him leave to apply for contact at some level.

Conclusions

1. When considering an application by a biological father for leave to apply for an order under s.8 of the Children Act 1989 in respect of a child conceived using his sperm by a woman who, at the time of her artificial insemination, was party to a civil partnership, the reforms implemented in ss 42,45 and 48 of the Human Fertilisation and Embryology Act 2008, and the policy underpinning those reforms – to put lesbian couples and their children in exactly the same legal position as other types of parent and children – are relevant factors to be taken into account by the court, alongside all other relevant considerations, including the factors identified in s.10(9) of the Children Act. In some cases, the reforms, and the policy underpinning those reforms, will be decisive. Each case is, however, fact specific, and on the facts of these cases, having considered all submissions from all parties, I find that the most important factor is the connection that each applicant was allowed by the respondents to form with the child.
2. I therefore grant leave to S and T to make applications for contact orders in respect of G and Z respectively. I refuse S leave to apply for a residence order.
3. I make it clear, however, that it does not follow that any substantive order for contact will be made in either case. Furthermore, if contact is ordered, it may well be significantly less frequent than the applicants are seeking. Decisions on whether there should be contact, and if so the frequency of that contact, will be determined applying the decisions of s.1 of the Children Act. The respondents will continue to deploy a number of the arguments that have been raised at this hearing concerning their autonomy as parents, the integrity of their family units, the risk of disruption to those units and consequential harm to the children. Those arguments are manifestly material considerations for the court in the exercise of its welfare jurisdiction.
4. Equally, the fact that leave has been granted does not lead automatically to a lengthy process of litigation. I remind the parties of the observation of Black LJ in Re B (Paternal Grandmother: Joinder as Party) (supra) that the court has a broad discretion to conduct the case as it considers appropriate. In some cases, a full inquiry will be directed. In other cases, the discretion will be exercised by limiting the scope of the proceedings very considerably. I shall in due course hear representations as to the scope of the proceedings in these cases.
5. Finally, despite the strong feelings and difficult relationships that unfortunately now exist in this case, I urge all parties to consider again whether all their disputes can be resolved without recourse to the full process of litigation. All parties have much to reflect on as a result of this hearing. Both D and E, and X and Y, may care to reflect on the fact that they chose S and T respectively to enable them to conceive children. In the case of D and E, they repeated that choice when they decided to have a second child. In the case of X and Y, they specifically wanted T to be a role model for their son. It was always part of the plans in both cases that there should be some contact between the children and their biological fathers. Equally, both S and T should reflect on the fact that the primary family unit for these children is with their mothers and this court will, when considering their substantive applications, look very carefully to ensure that any risk of harm to the children is avoided. These mothers understandably feel very vulnerable by the challenge to their family units. Notwithstanding the great social changes that have facilitated the creation of these new types of family, mothers in the position of D and E, and X and Y, understandably continue to feel vulnerable, and this court will take that vulnerability into account when considering the applications for contact.
6. I am, however, satisfied that, applying established legal principles in the context of the terms of and policy underpinning the 2008 Act, it is appropriate to grant both S and T leave to apply for contact orders.