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International Issues

Tuesday, May-21, 2024

International Issues

Lucy Harbron

Lucy Harbron is part of the Family team. Here, she takes a look at the importance of the process of appeals by looking at a recent landmark Court of Appeal decision that dealt with both legal parentage for same-sex parents and jurisdiction. 


When can a party appeal a decision?


It is important to note at the outset that you cannot apply to appeal a decision because you do not agree with the decision that the Judge has made. There is the potential for appeal of the lower court if the party can show that the original Judge’s decision was either 1) incorrect or 2) unjust due to a serious procedural or other irregularity. Either party to the proceedings can attempt to appeal a decision and this is the case whether an order was made or where the court refused to make an order.


How to appeal?


The procedure for appeals can be found within the Family Procedure Rules 2010 under Part 30 and the Civil Procedure Rules under Part 52. The set of rules that must be compiled with depends on the level at which the original decision was made.


There are strict time limits which must be considered. The appeal must be lodged with the Court within the time limit of 21 days for both County Court and High Court rulings, unless a lesser time has been ordered. If this deadline is missed, there is no guarantee that the appeal will be allowed. There may be an opportunity to appeal 'out of time' however, but this will require a detailed explanation to the Court who will then decide how to proceed. 


It should be noted that even when the criteria are met, there is still no guarantee that the appeal will be allowed. The Court must be satisfied that the appeal has 1) a real prospect of success or 2) there is some other compelling reason why the appeal should be heard. The Judge hearing the application for permission to appeal can grant or refuse the application. If the application for permission is successful at this stage, the case will be listed for a formal appeal hearing.


The general rule in family financial proceedings is that there is typically no order as to costs. In child proceedings, where the court is determining the child’s welfare and upbringing, the general rule is that neither party should be deterred from helping the court achieve the right solution by the risk of having to pay the other party’s costs.  


Recent Court of Appeal decision


A recent example of the Court of Appeal decision in S (Children: parentage and jurisdiction) [2023] has been described as an ‘historic win’ and has ‘opened the door on a new chapter in international family law.’ The Court of Appeal has provided guidance on two key issues regarding 1) legal recognition for parentage for same-sex parents and 2) jurisdiction.


Case summary


In this case, the children, all British citizens born in the UK were conceived by fertility treatment. The respondent (‘R’) is the biological mother and the children share the same genetic father. The party making the application for appeal, the appellant (‘A’) was the civil partner of R when the children were born.


R was not named on the children’s birth certificates and therefore, did not have parental responsibility for any of the children. The relationship broke down between the parties and R moved to a gulf state with the children in 2015. One year later, the civil partnership was dissolved.


In 2022, A applied to the Family Court for child arrangements order to regulate time spent with the children. The issue arose about whether A was a legal parent of the younger children. In summary, where artificial insemination takes place, legal parentage is applied in that the woman carrying child is the legal mother. If the mother is married or in a civil partnership at the time of treatment, her spouse or civil partner will be the second parent unless that party did not consent to the artificial insemination. In this instance, the Judge could not conclude that A had clearly objected nor consented to the artificial semination. The High Court found that A was not a legal parent.


The second issue was whether the English Courts had jurisdiction as the children were not habitually resident in England. The relevant statute under s2(1)(b)(i) and 2A(1)(a) Family Law Act 1989 states that the court of England and Wales are able to make orders for the children when the Hague Convention does not apply, and the order relates to continuing matrimonial or civil partnership proceedings for divorce or dissolution. A’s case was that there was jurisdiction as the civil partnership had dissolved in England and this was connected to her children application. Due to the laws in the gulf state and her status as a same-sex parent, A could not make the children application to the court in the Middle East. However, the High Court found that the English Courts did not have jurisdiction to deal with A’s application.


The decision was then appealed on the basis that the Judge had wrongly interpreted and applied the law to the facts of the case. On revisiting the relevant statute on legal parentage (section 42 of the Human Fertilisation and Embryology Act 2008), Lord Justice Peter Jackson allowed the appeal by saying the ‘detail of the evidence may have distracted’ the Judge in the lower court from the ‘big picture […] Where no issue is brought before a court, the spouse or civil partner of the gestational mother will be the parent of a child born after assisted reproduction in consequence of the statutory presumption of parenthood. Where an issue is raised, the court must give effect to the statutory wording by asking itself the question: “Has it been shown on the balance of probabilities that the spouse or civil partner did not consent to the assisted reproduction that was undertaken?”’ It could not be proven that A had actively not consented and the appeal was granted.


With regard jurisdiction that was also granted, Lord Justice Moylan said: “The courts of England and Wales have jurisdiction to entertain the applications and to make…orders in respect of the children, including those who are not present in England and Wales”. The appeal is significant as it has highlighted an international issue for many families that use artificial insemination and have parentage that may be recognised in England, but not internationally. Positively, the legal position on whether someone is a parent and how children based abroad can still in the English jurisdiction has been made far more accessible following this decision.

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