Application for order – Leave – Male applicants each being biological fathers of children born to women in civil partnerships – Issues arising over role applicants to play in children's lives

Re G (a child) (sperm donor: contact order); Re Z (a child) (sperm donor: contact order): Family Division: 31 January 2013

The proceedings involved two separate but linked applications. The two male applicants, S and T, had been in a relationship for 20 years. S was the biological father of two children, F and G. T was the biological father of Z. All three children were born as a result of home insemination. The children's mothers, who were known to the applicants, were both in civil partnerships. Issues arose between the parties over the role which the applicants were to play in the lives of the children.

As a result of the reforms introduced in the Human Fertilisation and Embryology Act 2008 (the 2008 act), legal parenthood of G and Z was vested in the mothers, E and X, and their respective civil partners, D and Y, to the exclusion of the applicants who therefore had no right to apply for orders in respect of the children without the leave of the court. F had been conceived prior to the 2008 act and was the subject of separate proceedings. The applicants sought leave to apply for orders under section 8 of the Children Act 1989 (the 1989 act) in respect of G and Z.

The issues were whether T should be granted leave to apply for a contact order in respect of Z and whether S should be granted leave to apply for a contact order and a residence order in respect of G. Consideration was given to article 8 of the European Convention on Human Rights.

The court ruled: when considering an application by a biological father for leave to apply for an order under section 8 of the 1989 act 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 sections 42, 45 and 48 of the 2008 act, and the policy underpinning those reforms, namely to put lesbian couples and their children in exactly the same legal position as other types of parent and children, were relevant factors to be taken into account by the court, alongside all other relevant considerations, including the factors identified in section 10(9) of the 1989 act. In some cases, the reforms, and the policy underpinning those reforms, would be decisive.

Each case was, however, fact specific. The position of a lesbian couple who had been granted the status of legal parents by the 2008 act was exactly the same as any other legal parent. Having taken those rights into account, however, it was still open to the court, after considering all relevant factors, to grant leave to others persons to apply for section 8 orders. In that regard, the position of biological fathers who had been deprived of the status of legal parent by the 2008 act was the same as any other person (see [115], [132] of the judgment).

In the instant cases, applying established principles in the context of the terms of and policy underpinning the 2008 act, it was appropriate to grant both T and S leave to apply for contact orders. It was 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, amounted to 'family life', or alternatively fell 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 1989 act would at least have amounted to a breach of their rights under articles 6 and 8 of the Convention. On the merits, S had a good arguable case for a contact order although not any form of residence order.

Further, the fact that there were ongoing substantive proceedings in respect of F was a powerful argument in favour of granting leave to S to apply in respect of G. In respect of Z, even if T was exaggerating when he spoke of a 'definite and obvious bond' with Z, overall there was evidence of a connection between T and Z and that was a strong argument for at least permitting the application for contact to be made (see [120], [126], [129], [137] of the judgment).

S and T would be granted leave to make applications for contact orders in respect of G and Z respectively. S would be refused leave to apply for a residence order (see [133] of the judgment). Schalk v Austria (Application No 30141/04) [2011] 2 FCR 650 considered; Anayo v Germany (Application No 20578/07) [2011] Fam Law 466 considered; B (a child) (care proceedings: application for joinder), Re [2012] 2 FCR 554 considered.

Madeleine Reardon for S; Deirdre Fottrell for D and E; Alison Russell QC for X and Y; Samantha King for T.