The Court of Appeal has dismissed the appeal of a woman against a decision of the High Court that her name be removed from a child’s birth certificate after her ex-wife admitted she secretly had sex with their sperm donor.
In P v Q & F (Child: Legal Parentage) [2024] EWCA Civ 878 the appeal concerned the legal parentage of X, who is aged six. Her genetic and gestational mother is P, and her genetic father, confirmed by scientific testing, is F. Her registered parents are P and Q, who is P’s former wife. Until X was five, everyone believed that Q was her second legal parent.
P and Q had agreed with F, then a stranger and now living abroad, that he would act as their sperm donor. On three occasions, F provided sperm that was used for the artificial insemination (‘AI’) of P. The statutory code contained in the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’) provides that this means of conception would confer legal parentage on Q.
However, unknown to Q, and at the same time as the AI was taking place, P and F engaged in sexual intercourse involving natural insemination (‘NI’), also on three occasions. X was conceived during the third occasions of AI and NI, and it is impossible to know which method of insemination led to her conception.
When X was three, P and Q separated and later divorced. There were disagreements about the arrangements for X. At the end of 2022, P revealed that NI had taken place, and she applied to the court for a declaration under the Family Law Act 1986 that F is X’s legal father. There was an issue about whether NI had in fact occurred. The judge found that it had, and she concluded that, as Q could not show that X was born from AI, F is the legal father.
Q appealed, arguing that it was for P to show that X was not conceived as a result of AI.
Lord Justice Peter Jackson, giving the unanimous judgment of the Court of Appeal, said that this was ‘a rare, and so far unique, case’ in which the burden of proof was decisive. He added:
“In this case, P had the burden of proving as facts that F is X’s genetic parent and that she and F had NI during the conception window. That was the burden she bore if her application were to have a chance of success. Even so, it was capable of being defeated if Q could show that the statutory provisions regulating parentage in cases of assisted reproduction were engaged, in other words that the case fell within the statutory footprint. That was the burden that Q had to discharge in order to prevent the declarations being made. In the unusual circumstances of the case, she was unable to do that.”
He concluded:
“[I]n the present case, there is nothing intrinsically surprising about the conclusion that X’s genetic parents are her legal parents. Q’s position will be protected by the extensive powers of the family court to make whatever orders X’s welfare may require.”
For the judgment, click here. For coverage in the Guardian, click here.
Original reporting by Family Law Week