In the Matter of X (No 1: Leave to Apply for a section 8 order)

This matter concerns a young child, X, now 10 months of age. The application is by JK, X’s biological father, but not her legal father. The respondents to the application are HS and KS, who are civil partners and X’s legal parents. I am giving this ex tempore judgment this afternoon because I am anxious that the parties in this case have a determination today. As a consequence this judgment may not be as full as I would have wished. If it becomes necessary I am able to expand on the detail, if requested to do so.

The applicant, JK, has applied for a parental responsibility order and child arrangements order. In his application he also seeks to have his name placed on X’s birth certificate. He is not legally represented in these proceedings. He was expecting to have a McKenzie Friend attend to assist him today. She has not been able to attend for family related reasons, but he has been able, and was content to continue today. I have extensive documentation in this case to be able to understand the points that he wishes to make. He has helpfully been able to outline his position by way of a prepared statement and in answer to the structure I have set out as to how he should make his submissions. Miss Matthews-Stroud has represented the respondents. They have provided skeleton arguments, which have been extremely helpful.

The respondents HS and KS were registered as X’s parents on her birth certificate and they oppose JK’s application. At the outset, in the light of the legal position set out in the respondents’ skeleton argument, JK agreed this court has no jurisdiction to (i) make a freestanding order for parental responsibility in relation to X within these proceedings, and (ii) to amend the birth certificate. As a result the focus of today’s application has been his application for leave, to make an application for a child arrangements order, in effect seeking contact with X.

I am going to set out a brief summary of the background. X was conceived following artificial insemination at the respondents’ home with HS using JK’s sperm. The parties had met three years previously through a website. The respondents state that they were looking for a known donor. JK disputes this and says they were looking for a co-parent. There is an issue on the papers about that, in particular as to precisely what was on the respondents’ profile on the website. There are two pages of that profile in the papers: one that was printed, on the face of it, in December 2014 by the respondents, which indicates their status as looking for a known donor; whereas JK has produced what he says is a picture of the position as at January 2015, which indicates that in fact they were looking for a co-parent; which was what JK says he was looking for when he signed up to this website.

It appears, in relation to the background, that, as part of their discussions in 2010 and as part of the arrangement they entered into, they signed, on 21^st November 2010, an agreement entitled “Sperm Donation Agreement Deed”. A copy is in the papers. It is, on the face of it, a standard form document, which one of the respondents indicated they had downloaded from the internet in circumstances, they say, to deal with JK’s concerns in relation to any financial responsibility that he may have regarding any future child, in particular with the Child Support Agency. That is disputed by JK. He says it was done and prepared in order to set out in written form the arrangements that had been reached between the parties, in particular his role as a co-parent. In fact, within the document, at paragraph 11, it deals with the question in relation to financial responsibility for JK, and indicates that he would have no financial responsibility towards X. As to the future arrangements for any contact that JK would have with any child that resulted from the arrangement, paragraph 30 sets out extensive contact and involvement between JK and the child, looking at alternate weekend contact, holiday contact and also that his name would appear on the birth certificate.

There is an issue between the parties as to whether this agreement was in fact varied in any way. JK sets out in his submissions to the court that in fact it was varied as a result of discussions between them, and the typed terms were capable of variation. The respondents say that there was no adjustment or changes in relation to the typed terms; the only parts that were added in by them, apart from their names, were details in relation to location and signing, all of which appear in manuscript form on the agreement.

The parties attempted to conceive originally in 2010, but that was not successful. This, amongst other factors, led to the relationship ending. There is a dispute between the parties as to who ended their relationship in relation to this arrangement, and what the precise circumstances were. There was then a gap of about eighteen months to two years before they met again, by chance, at a social event, in early 2013. This meeting led to further discussions and an agreement by them to try again to conceive a child. This led, in turn, to X being conceived.

There is considerable dispute between the parties about the factual background and, in particular, the level of involvement JK was to have in X’s life. Extensive statements have been filed by all the parties, including third party witnesses. HS and KS state they viewed JK as having known donor status, with what they describe as “minimal” involvement. In their skeleton argument they expressed it as follows: “Limited peripheral involvement, a positive role model” was how they expected him to be

JK disputes this and states his role was always to be that of what he termed a “full” parent, a co-parent, and relies in part on the deed that the parties entered into and signed in 2010. JK also relies on text messages which were exchanged between the parties, he submits the court has a lever arch file of copies of these messages saying, in effect, that he would be treated as the father of X and have unlimited contact.

Following X’s birth, JK has had limited contact with her, about thirteen occasions, which were always supervised either by HS or KS, or both of them, and they were generally only for a few hours at a time. There are a number of disputes around the circumstances in which the contact took place. There was dispute as to JK’s reliability, as to whether he was late on occasions and on one occasion did not attend at all. There is some evidence to suggest that some contact went well. There was an occasion when they went out for a meal with JK’s wider family, and also when X was taken in to the office where JK and HS had worked; the response and texts about that from HS indicated that it had gone very well and she was describing him as a happy father figure.

Relations then broke down again, which led to HS and KS informing JK, on 24th October 2014 they would be stopping all contact. There is a detailed text within the papers setting out their reasons for doing that. That was caused, in part, because of what they say was his unreliability in attending contact, his unrealistic expectations regarding his role and also the distress and difficult circumstances that were being experienced by the respondents in being able to manage his attempts to have contact with X.

The last time JK saw X was on 8th September 2014. Since then, he has had no direct contact. He issued his application in December 2014. The matter was initially dealt with by His Honour Judge Polden on 9th January 2015, when he made directions listing the matter before me. That resulted in this hearing being listed to determine the application for leave.

I will turn briefly now to consider the position regarding the legal framework. There is no dispute between the parties as to the legal framework. It is set out very clearly in the skeleton argument filed on behalf of the respondents. X was conceived through artificial insemination using JK’s sperm and with the consent of HS and KS, who are, and were at the time, civil partners. HS and KS are X’s legal parents, with shared parental responsibility. HS is her birth, biological and legal mother and, as a result, has parental responsibility for her by virtue of s.2 of the Children Act 1989. KS is X’s other parent by virtue of s.42(1) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008), which states as follows:

“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 subject to section 45(2) to (4), the other party to the civil partnership [in this case KS] 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).”

At the material time KS and HS were in a civil partnership and KS consented to the procedure that was undertaken.

KS shares parental responsibility with HS by virtue of s.2(1A) of the Children Act 1989, which states:

“Where a child –

(a)

has a parent by virtue of section 42 of the Human Fertilisation… the child’s mother and the other parent shall have parental responsibility for the child.”

As legal parents for X, HS and KS are the only people in law who can be recorded on X’s birth certificate and that, as I have said, is accepted by JK.

JK’s status is that he is X’s genetic father, but not her legal father. Section 45(1) HFEA 2008 explicitly states as follows:

“Where a woman is to be treated by virtue of section 42 or 43 as a parent of the child, no man is to be treated as the father of the child.”

By operation of s.48 (2) to (5) of the 2008 Act, they go further to provide that JK is not to be treated at the father for any purpose and that this dictates the interpretation of every other legal enactment and private document. Those relevant provisions provide as follows:

“(2)

Where, by virtue of section 33, 38, 41, 45 or 47 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 child for any purpose.

(5)

Where any of the 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.”

As I have said, there is no power to make the parental responsibility order sought by JK, which he accepts. He does not come within any of the relevant provisions in the Children Act 1989.

The fact that JK is not X’s legal father means that he cannot apply for a child arrangements order under s.8 of the Children Act 1989 without the court’s leave. Section 10(9) of the 1989 Act sets out the matters to be taken into account by the court when considering an application for leave. It provides that the court shall have regard to the following:

“(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 she would be harmed by it.”

The approach of the court to a leave application by a known donor who asserts the role of a parent is specifically addressed by Baker J in Re G and Re Z [2013] EWHC 134 (Fam). That case concerned two known sperm donors to two different lesbian couples (each couple were civil partner) who applied, in one case, for a contact order and, in the other, for a shared residence order. Neither was the child’s legal father as a result of the provisions of the HFEA 2008, so both required the court’s leave to make an application. Baker J granted leave to both applicants to apply for contact orders. He denied leave for the share residence order. At para.62, he stated as follows:

“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.”

Baker J referred to what Lady Justice Black said in Re B (a child) [2012] EWCA (Civ) 737, when she stated:

“[Section 10(9)] leaves the court to take into account all the material features of the case and merely highlight certain matters which are of particular relevance.”

Baker J considered the provisions of the HFEA 2008. The reforms were a relevant factor for the court to take into account in relation to an application by a genetic father who was not the legal father. The public policy decision to recognise lesbian parents and other parents through sperm donation as legal parents, to the exclusion of sperm donor fathers, was a material consideration and the facts of the case would dictate whether it was a decisive factor. He said, at para.132:

“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 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.”

I agree with the submissions made by the respondents that the principles from this case can be summarised as follows: firstly, the welfare of the child is not the court’s paramount consideration in relation to leave applications; secondly, s.10(9) of the Children Act 1989 sets out factors which must be considered by the court, including the nature of the proposed application, the applicant’s connection with the child and any risk there might be of the proposed application disrupting the child’s life to such an extent that he would be harmed by it; and, thirdly, the wording of s.10(9) allows consideration of any other factors which the court considers relevant in the particular case; the merits of the proposed application is one such factor.

In the context of applications such as this, the reforms implemented by the HFEA 2008 and the policy considerations underpinning them, to put same sex parents in the same position as other legal parents, is a material consideration for the court to consider.

I shall now turn to consider each of these principles in turn.

First, the nature of the proposed application. JK submits in his most recent skeleton argument before this court, at para.2, as follows: “I reasonably believe that it is only fair to acknowledge me as my daughter’s legal parent”; at para.12, he says: “I believe it is very important and reasonable for my daughter and myself to have the chance to build a strong bonding at this early stage of her life. It is unfair that my daughter has been taken away a chance of getting to know her father. My rights of even basic fatherhood have been violated”; and, at paragraph 13, he says: “I fully rely on the justice system protecting my basic human rights of being a father to my only daughter, who is likely to be the only child in my life.”

In his written statements, he states: “I feel that my daughter needs a loving father in her life. I will help her grow and develop in the role if the respondents can’t. I will provide a safe, stimulating and loving and caring environment for my daughter.” Later, in another statement, he says: “I just want to carry out my parental role of her father.”

In his oral submissions to me, he acknowledged and said that he would not make unrealistic requests for contact. He relies on what has been said in the various texts between the parties indicating what his role may have been, which he says is supportive of what was agreed between the parties. By way of example, at G/14 of the bundle, at page 38, he relies on a text that appears to have come from HS on 2nd May 2014, so just before X’s birth, where she sets out in a warm text exchange between them a discussion about X’s name and whether they should incorporate JK’s surname, K, in it. He also relies on the text exchange, by way of example, in the bundle at G/19, which is dated 23rd July 2014, again from HS, which follows the occasion when X had been taken in to work by HS at the place where she works, which is the same place where JK works. She says as follows (in the context of a birthday card and voucher that had been given to her by JK) “I will probably use it to buy some bits for X. I want her to love reading the same as me. We already do bedtime stories and I’m kind of getting bored of ‘Where’s mouse?’ All the girls said today what a proud dad you looked”, and then there is a smiley face.

HS and KS submit, through Miss Matthews-Stroud, that it is quite clear by the descriptions in his statement that JK seeks a high level of contact, and even suggests shared care with the view to him building a parent/child relationship, which is contrary to HS and KS’s wishes. They dispute it was ever agreed that JK should have a full parental role. They expected him to have a limited, peripheral role as a positive role model. They do not accept the agreement relied upon by JK reflects an agreement that JK would act as X’s father. They say even if that was agreed, such an agreement cannot be enforced in any event as they now take a different view about how to exercise their parental responsibility and that the interests of the child and not the interests of the adult should prevail. There is reliance in the skeleton argument placed on a case and the observations made in A v Band C [2012] EWCA (Civ) 285.

They also rely in their written submissions on observations that have been made in cases reported prior to the 2008 Act, where contact was sought by a known donor whose aim was to create a parental relationship which risked threatening the autonomy of the nuclear family. It is submitted on the respondents’ behalf that the nature of this application, which is to allow JK to build a parental relationship will threaten the autonomy of HS and KS as the nuclear family, is contrary to the statutory framework laid down by Parliament in the 2008 Act for the regulation of familial relationships where they were conceived by a sperm donor.

Turning to the second consideration that the court has to look at, which is the applicant’s connection with the child, JK submits that he has a connection with X. He said he is the genetic father. He has taken up all contact that has been offered and, even on the respondents’ case he submits that they envisaged him having some role. He said that needs to be considered against the background of the agreement that the parties signed in November 2010 and the texts that have been exchanged between JK and HS and, to a lesser extent, KS, which refer to him and his role in relation to X in positive terms. I have already referred to two examples of that in connection with the nature of the proposed application.

On behalf the respondents, it is submitted that it was notable in the Re G case one of the factors that influenced Baker J’s decision to give leave was the extent of the contact that had taken place (more than fifty visits over a period of about eighteen months) and the nature of the relationship that had been allowed to develop, which outweighed the other considerations. They submit the facts of this case do not fall within that same factual backdrop as the Re G decision. JK submits that one needs to look at the agreement that was entered into in 2010, the exchange of texts in 2013 and 2014 prior to X’s birth, and also the texts that were exchanged in relation to his role and the contact that he had after X’s birth.

The respondents submit this application is being driven by the fact that JK seeks to fulfill his own needs and not X’s needs, which they submit are already being fully met by HS and KS. Her need for two parents is met by them under the legal structure provided for in the 2008 Act. Both HS and KS take a full and active role in her care. They are her source of nurturing and security. The statement, in particular at para.58 of KS’s statement, sets out the position extremely clearly.

Turning to the third consideration, which is the likelihood of the application disrupting X’s life such as to cause her harm, JK submits that there will be limited disruption. He had contact in the four months after X was born with very little difficulty and in the context of some extremely positive texts exchanged between the parties as to steps he had taken in terms of buying things and gestures that he had made in relation to X and the respondents. The difficult ones that were exchanged between the parties, he says, have to be seen in the context of the difficult circumstances of him informing his family regarding his sexuality and in relation to the difficulties about contact when he was detained at work and unable to attend contact. He always, other than when delayed through work, attended contact. There may have been occasions once or twice when he was late, but overall he has been reliable and that has not caused significant disruption to X’s life such as to cause her harm.

On behalf of the respondents, it is submitted that X is doing well in the respondents’ care. They are her main carers and are entirely responsible for her nurture, the stability she enjoys and her security. They are concerned that by allowing the application to proceed there will be significant disruption, in part because of the unrealistic expectations in JK’s application and also because of the uncertainty that will be created by the fact that there will be ongoing proceedings. They say there has already been considerable disruption which they have had to endure. The detailed descriptions they give in their statements of the impact on them of the difficulties they say there have been in contact illustrates the position as to the disruption, and risk of disruption, there will be to X that is likely to cause her harm. They say, even after the filing of extensive statements by them of the impact of this application on them, JK has shown no reconsideration of his unrealistic aims. If anything, they say, it has made him more determined, irrespective of the distress and uncertainty that he is causing to HS and KS, which inevitably, they say, will have an adverse impact on X.

Turning to the position in relation to merits of the proposed application and the prospects of success JK has recognised in his submissions to this court that he will not make any unrealistic requests. I agree with that. He needs to be much more realistic in relation to what he seeks and the role that he has. Even if findings were made that there was this arrangement entered into in 2010, this is not a civil contractual arrangement; this is an arrangement concerning a child, where any final decision by a court, if leave is given, must be governed by what is in the best interest of the child, the child’s welfare is the courts paramount consideration.

HS and KS submit that the contact sought by him is analogous to that sought by a separated parent, which they consider is wholly unrealistic in the circumstances of this case. He is not a separated parent. He has never had contact at such a level or any contact without either of the respondents being present. They submit the prospects of success for such an application, if he maintained his position on paper, are extremely limited and could be termed fanciful.

As has been said before, any party who enters into arrangements such as this have generally underestimated the impact that it may have on all involved. As long ago as January 2006, in B v A [2006] EWHC 2 (Fam) Black J (as she then was) in dealing with a similar situation where a female couple had decided they would like to bring up a child together and the child to have a father figure in its life, they advertised for a man who would be interested in such an arrangement. Mr. B came forward and, after discussion, the decision was taken to go ahead and D, the child, was conceived as a result of sexual intercourse between Miss A and Mr. B. As she said, at para.3 of that judgment:

“…the arrangement presented more practical and emotional challenges than any of the adults had anticipated. They had not explored the ramifications of the plan sufficiently in advance.”

Whilst in this case the parties, when they entered into the arrangement, were able to work together, they had, like in B v A (ibid) underestimated the emotional impact a child can have on the situation and, whilst I accept I have not heard any oral evidence, it is clear that there was some common ground that JK should have a role in X’s life. The agreement was signed in 2010, which gave JK, on the face of the terms of that agreement, a very considerable role, even though there is a dispute as to the circumstances of it being signed and the significance which each of them attached to it. When the parties embarked on their attempts at conception again in 2013, it is clear from the texts, certainly the texts between HS and JK that he was going to have a future role in X’s life. The texts referring to X’s name, in early May 2014, the texts around the time of X’s birth and the text after the visit to work support that position. Whilst it is right that there were difficulties around timekeeping in relation to contact arrangements and JK not discussing his sexuality with his parents, those need to be seen in the wider context of the positive exchange of texts at around that time period.

JK has informed the court today that, if he is given leave, he will not make unrealistic requests regarding contact. That is a positive and significant step. If the court grants leave and he changes his position, that is unlikely to assist his position as it is likely to result in him being unable to have any role at all in X’s future. If he is given leave, his application will only be considered in the context of the reality of X’s position. Since birth she has been in the full-time care of her legal parents. It is they who provide her day-to-day care, nurture and security and they are the only people with parental responsibility. The structure that they have built round her in terms of her day-to-day care is entirely supported by the legal framework brought about by the changes in the 2008 Act.

However, JK does have a connection with X. He is the genetic father. He has had some limited contact and was involved to some extent in the build-up to X’s birth, as can be seen from the exchange of texts that took place at around that time in terms of helping to buy equipment.

It is right, according to the respondents, the difficulties they experienced over contact arrangements of course caused them some distress. HS’s statement gives a graphic account. Her distress needs to be viewed in the context of her own personal circumstances and what is said in the papers to be the difficulties she experienced when her own parents separated. However, the texts at the time of the birth and up until the end of July, even after the difficulties that had been experienced between them in June, display a warmth and understanding between the parties. Whilst I recognise that if the court does grant leave there will be some distress experienced by the respondents, I do not consider it to be at such a level as to cause X harm. The application and the timetable for it will be managed by the court.

In the light of JK’s realistic concessions that he will not be making unrealistic demands in terms of his contact and role regarding X, I cannot say the prospects of success in relation to his application are fanciful, bearing in mind the background that I have outlined. In relation to the public policy position, it is right that the statutory framework of itself is a consideration the court can take into account, but in the circumstances of this case it is not sufficient of its own to say that the application for leave should be refused.

Turning to the question of X’s welfare, as I have said, it is not paramount but it is relevant. On both parties’ cases it was expected that JK should have some role in X’s life. That was the position up to birth and in the weeks that followed. Miss Matthews-Stroud submits that both the respondents have parental responsibility and that it is a matter for them to determine how and when that should take place. I disagree. In my judgment, X’s welfare would be served by this issue being determined sooner rather than later. The parties all live in the same locality. JK still works at the same place as one of the respondents. X’s welfare interests would not be served by this issue being left unresolved. If leave was given, there would be a framework from which the parties will be able to move forward.

Therefore, bearing in mind the important concessions made by JK in his oral submission to this court, that he will not make unrealistic requests as part of his application, and bearing in mind his connection with X, that the risk of disruption will not cause X harm and that X’s welfare would be served by this issue, namely what future role, if any, JK should have in her life, being determined sooner rather than later, I will, in the circumstances of this case, grant leave.