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Mark Harper: When a biological father who is not a legal parent can seek contact with his child

Date:8 FEB 2013

Mark Harper

The decision of Baker J in Re G and Re Z last week resolved the circumstances in which the father of a child conceived by a lesbian couple in a civil partnership can seek leave to apply for contact.

Although there was not much publicity at the time as to the impact of it, the Human Fertilisation and Embryology Act 2008 ("HFEA 2008") introduced a radical change in the law.  For the first time, in some circumstances, a biological father is no longer regarded as a legal parent. Such a father requires leave of the court to apply for a section 8 order.

The relevant provisions of HFEA 2008 are ss.42(1), 45(1) and 48(1). S.42(1) provides "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 ... the other party to the civil partnership 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)."

S.45(1) provides: "Where a woman is treated by virtue of section 42 ... as a parent of the child, no man is to be treated as the father of the child."

S.48(1) provides: "Where by virtue of section ... 42 ... a person is to be treated as the ... parent of a child, that person is to be treated in law as the ... parent ... of the child for all purposes."

The intention of the legislation was to put couples in civil partnerships in the same situation as married heterosexual couples.  That was a commendable objective.  However, having read all of the relevant debates in Parliament in Hansard, it is clear that no thought was given as to the impact of these provisions when it came to what contact children so conceived should have with their biological father.

An important part of HFEA 2008 relates to the licensing of clinics to give IVF treatment.  The HFEA1990 had required clinics to take into account "the need for a father" when considering if IVF treatment services should be provided.  HFEA 2008 amended s13 HFEA 1990 to mean that the reference to "the need for a father" was replaced with "the need for supportive parenting".

It was on that basis that Counsel for the mothers in Re G and Re Z argued that there was a strong public policy behind HFEA 2008 meaning that the sanctity of the lesbian family unit should not be interfered with by granting a biological father leave to apply for a contact order.

Although the Parliamentary debates considered at great length whether it was appropriate to delete the reference to "the need for a father" this was in the context of provision of treatment services.  At no time during the debate was there any serious consideration as to the impact of s42-48 HFEA 2008. Moreover there was little discussion as to the impact where, as is more common, a child is conceived with a known father, as opposed to an anonymous donor through a licensed clinic.

Re G and Re Z makes clear that the granting of leave will always be fact specific. There may be cases where a biological father has played no role in the child's life, or even had no contact at all. In those circumstances it may not be appropriate for leave to be granted, unless there is a compelling reason or leave would be limited to identity contact. However where there has been contact with a known father, it is highly likely that leave will be granted.

Mark Harper is Partner in the Family Department of Withers LLP. Mark focuses on divorce and family law, in particular international cases and those involving trusts. He also deals with pre-nuptial and pre-civil partnership agreements.