In S (Children: parentage and jurisdiction) [2023] EWCA Civ 897, the court overturned an earlier High Court decision to deny the appellant, CP, parental status and consequently decline jurisdiction for the English court to determine the welfare of four children based in a country that does not recognise the status of non-biological same-sex parents.
The children are British citizens and were conceived through a donor while CP and M, who gave birth to them, were in a civil partnership. The couple broke up and M moved to a Gulf State in 2014 with the elder children while the younger ones stayed with CP, before joining their siblings five months later.
The questions before the court were whether CP was the legal parent, under the Human Fertilisation and Embryology Act 2008, and whether the Family Court has jurisdiction to entertain CP’s application, under the Family Law Act 1986.
The court unanimously agreed there should be a declaration that CP is to be treated as the legal parent and that the courts of England and Wales have jurisdiction to entertain CP’s application and to make orders in respect of the children if they are justified on welfare grounds.
All parties, including the intervener Reunite, were represented pro bono.
Alexandra Tribe, partner at Expatriate Law, representing CP, said: ‘This is one of the most important family law decisions in the last year.
‘It has two resounding impacts: one in the determination of parental status for those in same-sex relationships and second, for those parents with children based around the world where, for whatever reason, they cannot rely on the country in which they live to provide a welfare jurisdiction for their children, the English court is now much more likely to be able to assist.
‘The law on whether someone is a parent and how children based abroad can still receive English family law justice have both been clarified, simplified and made far more accessible generally.’
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