J v C & Anor

J v C & Anor

Mr. J is not, and never was, E's parent within the meaning of section 10(4)(a) of the Children Act 1989 because, at the time of artificial insemination, he was not legally male and thus could not be a party to a marriage with Mrs. C for the purposes of the Family Law Reform Act 1987, section 27. The statutory language requires the parties to be respectively male and female, and the law does not recognize parentage arising from a void same-sex marriage. Gender recognition obtained subsequently does not operate retrospectively to alter this legal position. Mr. J's rights under the European Convention on Human Rights are not engaged as there is no family life with E.

Parties
Appellant: J; 1st Respondent: C; 2nd Respondent: E (A child)
Jurisdiction
England and Wales
Judgment Date
15 May 2006
Procedural Posture
Appeal (family Law Parentage) / Appeal From High Court (family Division) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Parentage Under Artificial Insemination, Void Marriage, Gender Recognition, Children Act 1989 Applications, European Convention on Human Rights
Family Law Statutory Interpretation Human Rights Parentage Under Artificial Insemination Void Marriage Gender Recognition Children Act 1989 Applications European Convention on Human Rights

Case Brief

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Parties

J

Appellant

C

1st Respondent

E (A child)

2nd Respondent

Procedural Posture

Appeal (family Law Parentage) / Appeal From High Court (family Division) to Court of Appeal

Legal Issues

  1. 1 Whether Mr. J is a parent of E within the meaning of section 10(4)(a) of the Children Act 1989
  2. 2 Whether Mr. J requires leave to apply for orders under section 8 of the Children Act 1989
  3. 3 Whether the Family Law Reform Act 1987 or the Human Fertilisation and Embryology Act 1990 applies

Ratio Decidendi

Mr. J is not, and never was, E's parent within the meaning of section 10(4)(a) of the Children Act 1989 because, at the time of artificial insemination, he was not legally male and thus could not be a party to a marriage with Mrs. C for the purposes of the Family Law Reform Act 1987, section 27. The statutory language requires the parties to be respectively male and female, and the law does not recognize parentage arising from a void same-sex marriage. Gender recognition obtained subsequently does not operate retrospectively to alter this legal position. Mr. J's rights under the European Convention on Human Rights are not engaged as there is no family life with E.

Court Disposition

Appeal dismissed

Orders

  • Declaration that Mr. J is not a parent of E within the meaning of section 10(4)(a) of the Children Act 1989 is upheld
  • Mr. J requires leave to apply for orders under section 8 of the Children Act 1989 in relation to E