J v C & Anor

At the outset of the hearing of this appeal, we made an order imposing reporting restrictions prohibiting the identification both of the child to whom it relates, and the adults who are the parties to it including the elder child, who is now an adult. That order reflects the highly unusual and sensitive nature of the appeal, and echoes an injunction against publicity made by a circuit judge as long ago as September 1994. Against that background, I propose to identify both the adults and the child concerned in the case by initials only, and any report of our judgments should follow the same course.

The appellant is Mr. J. The respondent to the appeal is Mrs. C. The child concerned is E, a girl, now aged 14, who is represented in the proceedings by her guardian, CAFCASS Legal. Mrs. C is the mother both of E, and of an older child C, who was also a party to the proceedings, but who is now 18 and to whom the provisions of the Children Act 1989 (CA 1989) no longer apply. E and C live with Mrs. C, and the latter’s husband, Mr. C.

Before the trial judge, Hedley J, were two preliminary issues arising in proceedings under Part II of CA 1989 instituted by Mr. J in 2000. Those issues were formulated in the following way: (1) did Mr. J need leave pursuant to section 10(9) of CA 1989 to bring proceedings for specific issue and prohibited steps orders under CA 1989 section 8 in relation to C and E? and (2) if he did, should it be given? Underlying that legal formulation, however, was a simple but profound question. E had been conceived by means of artificial insemination by donor (AID). On the facts of this case, was Mr. J, as a matter of law, E’s parent, and thus her father?

The order made by Hedley J order was to the following effect: -

Having reached that conclusion, the judge refused Mr. J leave to make an application for specific issue and prohibited steps orders under CA 1989, section 8. He did so, however, because Mrs. C was willing to give, and gave, an undertaking to the court in the following terms: -

The judge made a number of ancillary and consequential orders, none of which is relevant for present purposes. With permission granted by the judge, Mr. J now appeals against the declaration set out in paragraph 4 above.

Although the argument before the judge ranged widely, and included submissions relating both to the Gender Recognition Act 2004 (GRA 2004) and as to whether rights under the European Convention on Human Rights (ECHR) were engaged, this appeal, in my judgment, turns on a short point of statutory construction. In these circumstances, I propose to relate only those facts which are directly germane to the resolution of this appeal.

This is the second time that the relationship between Mr. J and Mrs. C has been the subject of adjudication in this court. The reader will find a full exposition of the background facts in the judgment of Ward LJ in this court in the earlier litigation, reported as S-T (formerly J) v J [1998] Fam. 103 at 108-111.

For present purposes, it seems to me that the relevant facts are as follows: -

On 17 July 1977, Mr. J and Mrs C went through a ceremony of marriage. At that point, Mrs. C was a spinster aged 20. Mr. J was 30, and suffering from gender dysmorphia. Although living as a man since approximately the age of 17, he had been registered on the day after his birth as a female, and, at the date of the ceremony of marriage was, both in fact and in law a woman. This was something he knew, and which he concealed both from Mrs. C and from the priest who conducted the ceremony.

Thereafter Mr. J and Mrs. C lived together for many years as though husband and wife. Mrs. C remained in ignorance of the fact that Mr. J was a woman.

C and E were conceived by means of AID in 1986 and 1991 respectively. Although what Mr. J said to the clinic which provided the treatment has never been the subject of judicial investigation, it is plain that he did not disclose the fact that he was a woman to anybody involved in the process.

The relationship between Mr. J and Mrs. C broke down in 1994 and Mrs. C filed a petition for divorce on 22 April of that year. During the divorce proceedings she saw a copy of Mr. J’s birth certificate and realised (for the first time) that Mr. J was a woman.

On 26 May 1994 the divorce petition was dismissed, and proceedings taken for nullity of marriage. On 19 August 1994, a decree nisi of nullity was pronounced in undefended proceedings in the county court, in which “the marriage in fact had and solemnised” on 7 July 1977 was “pronounced and declared to have been by law void by reason of at the date of the said ceremony the parties were not respectively male and female”. That decree nisi was made absolute on 10 October 1994.

On 18 May 1995, the President of the Family Division, Sir Stephen Brown, dismissed Mr. J’s application for both direct and indirect contact with C and E. No contact between E and Mr J has taken place since.

On 25 January 1996, Hollis J dismissed Mr. J’s application for ancillary relief in the nullity proceedings on the determination of a preliminary issue as to whether Mr. J should be debarred from continuing his claim for ancillary relief on the grounds that it was contrary to public policy. Hollis J held that by purporting to marry Mrs. C, Mr. J had committed perjury.

In April 1996, Mr and Mrs. C married.

On 21 November 1996 this court (Ward and Potter LJJ and Sir Brian Neill) dismissed Mr. J’s appeal against Hollis J’s order: - see S-T (formerly J) v J (supra). The Court was divided in its reasoning. Ward LJ took the view that the principle of public policy that no one should profit from their own wrong applied; the majority (Potter LJ and Sir Brian Neill) took the view that the principle of public policy identified was not determinative, but that on the facts, and in the light of Mr. J’s conduct, no court could properly have exercised its discretion to grant him ancillary relief.

On 25 April 1997, Sir Stephen Brown P dismissed a renewed application by Mr. J for contact with the two children.

In April 1999, Mr. and Mrs C issued adoption proceedings in relation to the children. On 19 April 1999, the President of the Family Division, Dame Elizabeth Butler-Sloss gave directions for the trial of a preliminary issue as to whether Mr. J was to be regarded as a parent of either child within the meaning of the Adoption Act 1976. In September 1999, however, Mr. and Mrs. C withdrew the application.

On 20 November 2000, Mr. J issued a form C1 seeking specific issue and prohibited steps orders in relation to each child. On 3 November 2004 HH Judge Barnett directed the trial of the two preliminary issues determined by Hedley J on 29 July 2005.

On 1 June 2005, Mr. J obtained a Gender Recognition Certificate (GRC) under GRA 2004. This shows (1) his gender to be male, and (2) that he is, from 1 June 2005 “of the gender shown”. He has also obtained a fresh birth certificate, giving his sex at birth as male.

Although, on the face of it, there has been a very substantial delay in the resolution of the proceedings instituted by Mr. J on 20 November 2000, the judge found that there was nothing suspicious in the lapse of time, and I say no more about it.

The judge recorded Mr J’s aspirations in the CA 1989 proceedings as limited to the following: -

A prohibited steps order that the children should not be informed of: -

their parentage, and

the reasons for the breakdown in relationships and in particular Mr. J’s gender save at such times and in a manner advised by Dr E (a consultant psychiatrist) or such other consultant child psychiatrist as may be agreed;

a specific issue order that Mrs. C seek the advice of Dr. E; and

an order that Mrs C swear an affidavit setting out whether she intends to proceed in accordance with a letter dated 6 November 2002.

The letter to which reference is made was from Mr. J’s solicitors to Mrs. C’s solicitors setting out Mr. J’s view of the manner in which both children should be informed of their respective histories.

I have already recorded the undertaking given by Mrs. C to the judge. Mr. J has, in my judgment, achieved by that undertaking all he can reasonably expect to achieve in the proceedings. For this reason, at the outset of the hearing, I raised the purpose of this appeal with his counsel, Mr. Valentine le Grice QC. Mr. le Grice accepted that since C is of age, the proceedings no longer relate to him. He also acknowledged that his client had not seen E since she was a very small child, and was not seeking contact with her. It was, however, clear that apart from wishing the court to regulate the manner in which both children are informed about their origins, Mr. J is anxious, above all, to establish the legal fact of his parentage of E.

Speaking for myself, I have grave doubts about whether the court has jurisdiction by means of prohibited steps and specific issue orders to dictate to Mrs. C what she tells either C or E about their origins. Mr. le Grice persuaded me, however, that the question of E’s parentage was a properly justiciable issue, and that had Mr. J not raised it in the proceedings under Part II of CA 1989, he could have sought a declaration of parentage under section 55A of the Family Law Act 1986, the terms of which it is unnecessary to set out. In these circumstances, and given the importance of the issue for Mr. J in particular, we proceeded to hear the appeal. I will, however, return to this point at the end of this judgment.

I begin with CA 1989, section 8 of which identifies the orders which the court may make in relation to children under Part II of the Act. These include prohibited steps orders and specific issue orders. CA 1989 defines these in the following terms.

CA 1989 section 9 imposes a number of restrictions on the court’s power to make any section 8 order, none of which is relevant here. CA 1989 section 10 identifies the persons entitled to apply for section 8 orders. It divides them into two categories, namely those who have an automatic right to apply, and those who need “leave” (the word used by the Act) to make an application. For present purposes it is sufficient to record that “any parent” of a child does not require leave to make an application: - see CA 1989 section 10(4)(a). In the case of a person who requires leave, section 10(9) lays down a number of criteria which the court must consider in deciding whether or not to grant leave. It is not necessary for the purposes of this judgment to set them out.

CA 1989 does not define the term “parent” used in section 10(4)(a). There is also no definition of “father” in CA 1989. We therefore have to look elsewhere for an applicable statutory definition. In this context, I respectfully agree (as did the judge) with the observations of Butler-Sloss LJ, as she then was, in a quite different context in M v C and Calderdale MBC [1993] 1 FLR 505, 509 that the natural and ordinary meaning of the word “parent” is not fixed, but changes according to the context in which it is used. Mr. J is manifestly not E’s natural parent. It is therefore necessary to see if he comes within the relevant statutory definition of parent contained in the relevant Act of Parliament.

Two Acts of Parliament define parenthood in the context of AID. The first is the Family Law Reform Act 1987 (FLRA 1987). The second is the Human Fertilisation and Embryology Act 1990 (HFEA 1990). The judge was addressed, and decided the case, on the basis that section 28 of HFEA 1990 applied. He was not invited to consider FLRA 1987, section 27. In this court, however, the consensus amongst counsel was that FLRA 1987 applied to the facts of this case, given the date on which AID must have occurred.

In my judgment, for the reasons which follow, HFEA section 28 does not apply, and this case is governed by FLRA 1987. I will, however, set out the relevant parts of the sections of both statutes. HFEA 1990 section 28 is an extremely long section. It is, I think, sufficient to set out only sub-sections (1) to (3) and (7)(b)

However, HFEA section 49(3) and (4) provide that: -

The date on which HFEA 1990 section 28 commenced was 1 August 1991 – see the HFEA 1990 (Commencement No. 3 and Transitional Provisions) Order 1991 (SI 1991 no. 1400). E was born on 15 March 1992. There is no suggestion anywhere in the papers that she was other than a full term baby. It follows inexorably, in my view, that the artificial insemination of Mrs. C took place prior to 1 August 1991, and that accordingly HFEA 1990 does not apply.

The judge appears to have accepted the argument that HFEA section 28 applied because E was being carried by Mrs. J after 1 August 1991. She plainly was. That, however, is not the test. The critical date is the date of the artificial insemination which resulted in E being carried by Mrs. J. That date was plainly before 1 August 1991. The fact that E was “being carried” by Mrs. C after 1 August 1991 is thus immaterial. The phrase “is being or has been carried” in HFEA 1990 section 28(1) in my judgment simply identifies the foetus whose existence in utero, or the child whose birth, has resulted from the act of artificial insemination. The time which is plainly relevant, as HFEA section 28(2) and 49(3) make clear is (in the instant case) the time of Mrs. C’s insemination. That is a date which is plainly capable of being fixed, and is no doubt a matter of medical record.

Fixing the inapplicability of HFEA 1990 by reference to the date on which Mrs. C was inseminated is a construction of the statute which seems to me not only to give the words of sections 28(1) and 49(3) their natural meaning, and to accord with reality; but it also fits in with the purpose and structure of HFEA 1990.

The background to HFEA 1990, which followed the Report of the Committee of Inquiry into Human Fertilisation and Embryology chaired by Dame Mary Warnock DBE, is authoritatively set out in the speech of Lord Bingham of Cornhill in R (on the application of Quintavalle) v Secretary of State of Health [2003] UKHL 13, [2003] 2 AC 687. The Act introduced a new and rigorous system of licensing, and it is significant for present purposes that HFEA 1990 section 28(3) specifically envisages AID in the context of “treatment services provided for her and a man together by a person to whom a licence applies”. This court knows very little of the circumstances surrounding Mrs. C’s insemination, but it is reasonably clear that it did not take place in the context of treatment services provide under HFEA 1990. As Ward LJ put it in S-T (formerly J) v J [1998] Fam. 103 at 109C-D: -

I respectfully agree. On any view, Mr. J must have misled the doctors treating Mrs. C. Had Mrs. C and Mr. J approached a clinic after the introduction of HFEA 1990, and had Mr. J revealed the truth about his gender, the clinic would have plainly risked the forfeiture of its licence had it provided treatment services for them: - see HFEA 1990 section 13 (Conditions of licences for treatment). In the instant case, therefore, a finding that the relevant “treatment” of Mrs. J (the act of AID) took place before the implementation of HFEA 1990 is consistent with the statutory framework as it existed prior to 1 August 1991.

In my judgment, therefore, it is clear that the applicable statute is FLRA 1987. The relevant section of this Act reads: -

For Mr. J, Mr. le Grice invited us to give this section a literal construction. The argument, as I understood it, ran along the following lines. Mr. J and Mrs. C were parties to a void marriage which at the time of the insemination had not been annulled. A marriage in which the parties are not respectively male and female is included as section 11(c) of the Matrimonial Causes Act 1973 (MCA 1973), where the grounds on which a marriage is void are set out. So this was a void marriage within section 11 of MCA 1973 and FLRA 1987 section 27(2). Mr. J knew the marriage was not valid, but Mrs. C plainly believed that it was, and reasonably so believed - see the finding of the judge in Mr. J’s proceedings for ancillary relief that she was not disabused of her belief about Mr. J’s gender until after she had instituted divorce proceedings, when she saw his birth certificate. Both parties plainly consented to Mrs. C’s insemination. The terms of the section, Mr. le Grice argued, were thus satisfied. E is the child of Mrs. C and Mr. J. He is thus, as a matter of law, her father.

Miss Judith Parker QC, for Mrs C, supported by Mr. Robin Tolson QC, for E, invited us to pay critical attention in FLRA section 27(1)(a) to the words “a party to a marriage” and the corresponding words in section 27(1)(b) to the words “the other party to that marriage”. Mrs. C, the party who was inseminated by AID, is plainly female: she conceived and gave birth to E. So if marriage is exclusively the union of a man and a woman (which, in English law, it plainly is) “the other party to the marriage” must be a man in order for there to be a marriage. If that other party is not a man, there is no marriage. Mr. J in 1991 was a woman, and, as such, could not be a party to a marriage with another woman. Therefore, say Miss Parker and Mr. Tolson, Mr. J cannot fulfil the definition of “the other party to that marriage”, and Mr. J cannot be E’s father.

In my judgment, Miss Parker’s and Mr. Tolson’s construction of FLRA 1987 section 27 is correct. It is, of course, true that MCA 1973, section 11 (c) identifies the fact that the parties are not respectively male and female as one of the grounds on which a marriage is void. But the reason for that is not far to seek. MCA 1973 section 11 (c) simply gives statutory expression to the decision reached by Ormrod J (as he then was) in Corbett v Corbett [1971] P 83, a case which involved proceedings for a declaration of nullity of marriage where both parties to the ceremony of marriage were male. The case was, of course, decided in 1970 prior to the enactment of section 1(c) of the Nullity of Marriage Act 1971 (the predecessor of MCA 1973, s 11(c)). Ormrod J granted the petitioner a decree of nullity as opposed to a declaration under what was then RSC Order 15. He did so on the ground that he had no discretion to withhold a decree of nullity under the statutory jurisdiction of the High Court, derived originally from section 2 of the Matrimonial Causes Act 1857. Such a decree gave rise to a right to both parties to institute proceedings for ancillary relief. MCA 1973, section 11(c) thus simply gives statutory expression to the jurisdiction which Ormrod J assumed.

The enactment of section MCA 1973 section 11(c) does not, in my judgment, affect the fundamental proposition, given expression by Ormrod J in Corbett v. Corbett, at [1971] P 83 at 109E, that

I therefore respectfully agree with Hedley J when he cites, albeit in the context of HFEA 1990, the judgment of Potter LJ (as he then was) in J v. S-T v J at [1994] Fam. 103 at 146A to E:

Mr. le Grice submitted that if Mr. Jackson had lived to write a third edition of his remarkable book The Formation and Annulment of Marriage, he would have re-written the paragraph cited by Potter LJ. I do not agree. In my judgment, that paragraph still represents the law.

The fact that FLRA 1987 and not HFEA 1990 applies illustrates the highly unusual nature of the facts in this case. However, I think it only fair to Hedley J to say that, in my judgment, he reached the correct conclusion (and the same result) in interpreting virtually the same words (“party to a marriage” and “the other party to the marriage”) in HFEA 1990 section 28(2) in the same way. Whilst it is dangerous to use the words of one statute in the construction of another, I accept Miss Parker’s submission that consistency in the interpretation of near identical language used in the same context but in different statutes is desirable. HFEA 1990 undoubtedly tightened the law on AID and IVF. It introduced a strict system of licensing and the concept of consent to treatment. It would be most unfortunate, in my judgment, if the word “father” was to have a different meaning in the two statutes.

Since I take the view that the terms of FLRA 1987 section 27 exclude Mr. J from being a parent of E, it follows that I do not need to consider the not altogether straightforward question as to whether Mrs. J “reasonably believed that the marriage was valid”, a subject addressed in detail in Miss Parker’s respondent’s notice and skeleton argument. Nor do I need to wrestle with the opaque provisions of GRA section 9(2) (which seek to identify the effects of the GRC which Mr. J obtained on 1 June 2005). I can also leave on one side Miss Parker’s ingenious argument based on the apparent decision of the government to drop a clause in the Gender Recognition Bill which provided that where two women presented for treatment under HFEA 1990, and subsequently the non-child-bearing woman obtained a GRC as a man, that person would be treated as the father of the child born as a consequence of the treatment. These issues can now await elucidation in a case in which they apply.

Whilst Mr. J has been able to obtain both a GRC and a fresh birth certificate in his male gender, Mr. le Grice did not submit (correctly in my view) that the effect of either was to validate the ceremony of marriage. As a matter of law, and as a consequence of the GRC, Mr. J is now a man for all purposes. He can now marry as a man. That does not, however, mean that he was not a woman on 17 July 1977, the date that he entered into the ceremony of marriage with Mrs. C.

Equally, in my judgment, Mr. J’s rights under ECHR are not engaged. He was never married to Mrs. C. He has not seen E for very many years. He is not seeking contact with her. There is plainly no family life in relation to which Mr. J’s right to respect arises. The only family life engaged is that of E and C, their mother and step-father.

Mr. J clearly has a right to respect for his private life. But, speaking for myself, I do not see how a declaration that Mr. J is not E’s father (if, as a matter of law he is not) constitutes such an interference. As Mr. le Grice properly conceded, recognition of Mr. J’s male gender in this respect is not retrospective (GRA section 9(1)). In these circumstances, in my judgment, section 3 of the Human Rights Act 1998 is not in play, and no question of seeking to read and give effect to FLRA 1987 section 27 in a way which is compatible with Article 8 arises.

Nor, in my view, is Article 6 engaged. Mr. J was entitled to apply to the court. He has done so and been fully heard. The fact that he needed leave to make an application under section 8 does not engage Article 6. There is plainly no separate discrimination under Article 14. GRA 2004 gives Mr. J the right to be a man and to correct his birth certificate. He can now marry as a man. Article 14 is thus not engaged.

It follows, in my judgment, that although Hedley J was directed to, and construed, the wrong statute, he reached the right result. Mr. J is not, and never was, E’s parent. The fact that he acted as such for a short period of her childhood does not, as a matter of law, enable him to claim the status of parenthood. The declaration made by the judge was correct.

Although I understand why Hedley J gave Mr. J permission to appeal against the declaration which he made in this case, and whilst I am not even remotely critical of him for having done so, I have to say that had he refused to grant permission to appeal, I think it highly unlikely that I would have done so had the matter come before me as a single Lord Justice on paper. I say this despite the misapprehension over HFEA 1990 (had it by then emerged). My reasons are as follows.

Whilst the question of Mr. J’s status is plainly a matter of importance to him, the real question in the case is how both C and E are to be informed about their respective origins. This is a highly sensitive matter, but it does not seem to me to be one which is ultimately justiciable by way of orders under CA 1989 section 8. What Mrs. C says to C and E is, in my judgment, a matter for her, and not for the court to determine. There is a limit to which the court can and should seek to govern parental behaviour.

In my judgment Mrs. C has sensibly agreed to take the advice of Dr. E before telling either C or E about their respective backgrounds. I do not think the court can, or should, ask her to do any more. Thus, in my judgment, Mr. J, by securing Mrs. C’s undertaking, had achieved all he could reasonably expect to have achieved in the proceedings under CA 1989, and their prosecution could only have served unnecessarily to prolong what has already been an unduly extended court involvement.

It follows that although the judge’s refusal to give Mr. J leave to apply for orders under CA 1989 is not, strictly speaking, part of this appeal, he was, in my judgment, right not to give leave once Mr. J had proffered the relevant undertaking.

I take the view that the judge was plainly right in the conclusions that he reached. I would, accordingly, dismiss this appeal.

I agree that the appeal should be dismissed for the reasons given by Wall LJ. Mr le Grice’s submissions based on the literal interpretation of the statute have an attractive simplicity to them: “the parties to that marriage” within FLRA 1987 section 27(1) include, by section 27(2), parties to a void marriage; the grounds on which a marriage celebrated after 31 July 1971 shall be void are set out in MCA 1973 section 11 and include, by section 11(c), “that the parties are not respectively male and female”, so that section 27 extends on the face of it to a marriage celebrated between a woman and another woman. I am satisfied, however, that that cannot be the correct construction. If one stands back and looks at the statute in its context and against the background of the Warnock report to which Wall LJ has referred (and passages from which were cited to us, in particular from the section at paras 4.17-4.28), I think it plain that the legislative intention must have been for the provisions to apply only to a marriage in the sense of a union between a woman and a man, and that “marriage” in section 27 must be read accordingly.

The language of the successor statute, HFEA 1990, brings that out more clearly by providing in section 28(2) that the other party to the marriage is to be treated as “the father” of the child. Unlike Hedley J, and having regard to the particular statutory context, I would attach significance to such gender-specific language here and elsewhere in the section. The legislature cannot have intended that a woman be treated as “the father” of the child. Although the successor statute cannot be used as a direct aid to the construction of the earlier statute, it does serve to exemplify a legislative policy which in my view cannot have been any different in relation to the earlier statute.

Mr J contends that such a construction of FLRA 1987 is incompatible with his rights under the European Convention on Human Rights and that the court is required by section 3 of the Human Rights Act 1998 to adopt a different construction in order to produce a result that is compatible with the Convention. Like Wall LJ, however, I find it difficult to see how the case under the Convention even gets off the ground. In my judgment, to construe the statute in the way I have indicated does not interfere with Mr J’s rights either under article 8, upon which principal reliance is placed, or under any other article of the Convention.

One aspect of Mr le Grice’s submissions under article 8 is that a lack of recognition of Mr J’s acquired male gender through failure to accord him the status of parent under FLRA 1987 would violate his right to respect for private life under article 8, having regard in particular to the principle of personal autonomy emphasised by the European Court of Human Rights in Goodwin v United Kingdom [2002] 2 FLR 487. I cannot accept that argument. The violations of the Convention identified in Goodwin were rectified by the enactment of the Gender Recognition Act 2004. Mr J has duly obtained a Gender Recognition Certificate pursuant to that Act. He therefore now has the male gender for all relevant purposes and can marry as a man. None of that, however, can rewrite history, even leaving aside the more technical questions of retroactivity of the Human Rights Act. Mr J did not have the male gender, and could not sensibly be treated as having had the male gender, at the time when he went through the marriage ceremony with Mrs C or at any time prior to the marriage being declared void. To give effect to the undoubted fact that he did not have the male gender at the relevant time cannot possibly involve a lack of respect for his male gender as subsequently acquired.

Another aspect of Mr le Grice’s submissions under article 8 is that to deny Mr J the status of parent infringes his right to respect for family life. As to that, I agree with Wall LJ that there is no family life capable of engaging that right in the circumstances of this case.

I think it unnecessary to deal with other specific points canvassed under the Human Rights Act or the Gender Recognition Act. In short, I take the view that none of them advances the case for Mr J. In my view the matter turns instead on the short point of construction of FLRA 1987 identified by Wall LJ.

I agree with both judgments.