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Defining parental involvement after non-traditional conception

Date:21 DEC 2015
Alex Curran
Irwin Mitchell

Family law practitioners will be all too familiar with the complexities that can arise in the context of the arrangements for children through non-traditional methods. The decision handed down on 13 November by Theis J in Re X (No 2: Application for Contact by the Biological Father) [2015] EWFC 84 gives a stark warning to any potential client considering starting a family in non-conventional circumstances.

The facts

The application for a Child Arrangements Order before her Ladyship in respect of a young girl of 18 months old was brought by her biological father, JK. The three respondents to the application were the child's two mothers (HS and KS) who were in a civil partnership at the time of conception, and the young girl herself (X), who was represented by her Rule 16.4 Guardian. X was conceived through artificial insemination at the mothers' home.

HS was the child's birth, biological and legal mother. By virtue of section 42(1) of the Human Fertilisation and Embryology Act 2008, the mother's civil partner, KS, was considered as X's 'other parent', and accordingly shared parental responsibility for X with HS pursuant to section 2(1A) of the Children Act 1989. Section 45(1) of the 2008 Act specifically excluded JK from being considered as X's legal father. Theis J had granted JK permission to bring an application for a Child Arrangements Order in March 2015.

It was an unfortunate feature of this case that JK and the mothers had completely different recollections and views as to the role that JK would play in X's life. Readers will not be surprised to learn that JK thought he would fulfil a co-parenting role. On the other hand, HS and KS, although recognising JK's genetic association with X, submitted they only believed JK would have 'donor status' and would have 'limited peripheral involvement'. The waters were mudded by the parents entering into a 'Sperm Donation Agreeement Deed', which set out in extensive detail the contact that JK would have with any children born as a result of artificial insemination. Following the birth of X, the different beliefs as to JK's role caused a complete breakdown in the relationship between the adults and the limited and supervised contact that had been taking place between X and JK ceased.

On the back of the agreement entered into between the mothers and JK, JK's application sought alternate weekend contact, contact on Father's Day, X's birthday, Christmas, and three or four weeks of staying contact in the UK or abroad. Having granted permission to JK to seek a Child Arrangements Order in March 2015, Theis J warned JK against having unrealistic expectations of contact in his substantive application. In her judgment, she reported that JK was effectively pursuing his application from the standpoint of a separated parent. This was in complete contrast to the role that HS and KS had envisaged, or could even countenance.

The evidence

Her Ladyship heard oral evidence from the mothers, JK and the Guardian. The mothers reported substantial detail about the impact that JK's application had on them. They submitted they were deeply concerned that granting direct contact would interfere with X's emotional welfare, and it would undermine their ability to provide her with a stable and secure home having regard to the breakdown in the relationship between the adults. HS was diagnosed with situational anxiety and the mothers had gone through relationship counselling to deal with the difficulties they had experienced as a result of JK's application for direct contact. Evidence regarding the impact on their relationship, health, family and friends was extensively reported.

The Guardian's report, which was described by her Ladyship as being 'a model of its kind' and 'measured, balanced and well-reasoned', supported the position advanced by the mothers. The Guardian found that JK had no perception of how his application or his potential involvement with X may jeopardise the security of X's home with her mothers. The Guardian was concerned to hear that the mothers reported that JK's application was the most stressful experience of their lives, and that HS in particular was suffering significantly. Her appetite and sleep were affected, and she often reported feeling physically sick at the prospect of encountering JK. When questioned about this by her Ladyship, JK failed to appreciate the impact upon the two mothers and, no doubt crucially, how this could directly undermine X's welfare. Instead, he submitted, quite rightly some might say, that he too had struggled throughout the entire process.

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The decision

JK's lack of insight regarding how this application had affected X's mothers and how this could destabilise the security of X's home, in addition to his inability to appreciate the mechanics of him having contact with X in circumstances where the adults' relationship was all but decimated, proved to be fatal.

In considering the welfare checklist, Theis J had no difficulty in supporting the Guardian's recommendation that there should be no direct contact between JK and X. In a considered judgment, Theis J found that X was being cared for excellently by her mothers, and the addition into her life of contact with JK would bring 'little positive benefit'. It would 'put at risk the security of her placement, both in the short and long term'.

Her Ladyship continued and found that, if she were to grant direct contact, it would perpetuate JK's belief that he was a separated parent and he would, in all likelihood, seek to increase contact in the future. That risk, her Ladyship found, coupled with JK's general lack of insight, was too great and it risked undermining X's placement with her mothers and detrimentally affecting her emotional welfare. The judge held that the information X required about her genetic background could easily be satisfied through annual letters without photographs (until 2019). Theis J found that the risk of JK posting photos to social media would cause unnacceptable levels of anxiety for Hs and KS which would further undermine X's stability. Her Ladyship supported the Guardian's position that anything over and above annual letters jeopardised the paramount consideration of promoting X's welfare.


There can be little doubt that this decision underpins the 'welfare, welfare, welfare' principle that forms the backbone of any decision of the Court when invited to make an Order regarding the arrangements for children. Whilst some readers may consider the judgment to be on the extreme end of the scale, particularly having regard to the Sperm Donation Agreement Deed, practitioners will bear in mind that, irrespective of the intentions parties may have when entering into agreements such as these, the welfare of the child will always prevail.

The welfare cornerstone of Children Act cases is amplified by the contrast of this case with the decision reached by Mr Justice Cobb in Re A and B (Contact) (No 3) [2014] EWHC 818 (Fam), which was a case with a broadly similar factual matrix as the instant case of X: two mothers in a civil partnership, two fathers in a civil partnership, two children, mental health problems on the part of one of the mothers and an intractable contact dispute. In Re A and B, Cobb J held, in respect of the younger of the two children, that supported contact eight times a year was necessary in order to develop the relationship between the fathers and the younger child. Cobb J held that failure to do so ran the risk of further alienating the younger child from the fathers and risked causing the child further harm.

Sympathies may be had with JK; Theis J found in her judgment that there was no doubt that he loved and cared for X very much. However, in finding that JK's application and his lack of insight towards HS and KS was detrimental to X's emotional welfare and stability, her Ladyship realistically had no alternative Order to make.

As set out in the beginning of this article, people wishing to start a family through non-conventional means should take notice of this judgment and proceed with caution. Anyone actively considering this option would be well informed to seek specialist legal advice about their rights, duties and obligations if choosing to walk down the complicated path of IVF. At the very least, there should be a universal understanding recorded in unequivocal terms as to what role each of those involved will have when children conceived through non-traditional methods are born. However, fundamentally, it must be understood that will always be subject to the welfare of the child concerned.