(Family Division, Baker J, 31 January 2013)
The two men were the biological fathers of children conceived using their sperm and born to women in civil partnership. They applied for leave to apply under s 10 of the Children Act 1989 for orders under s 8 as by virtue of the Human Fertilisation and Embryology Act 2008 they were not the legal fathers of the children.
In both cases the mothers claimed the arrangements from the outset were that they would be the day-to-day carers of the children and the men would not have a father-type role. The fathers claimed the opposite and that the intention was for them to have a meaningful paternal relationship with the children but had not been aware of the consequences of the HFEA 2008.
The reforms passed by the HFEA 2008 and the policy underpinning those reforms were material considerations for the court. It was now acknowledged that alternative family forms without fathers were sufficient to meet a child's need.
In each case it was arguable that the relationship between father and child had been allowed to develop through contact and involvement in preparations for the birth and that relationship was in some way linked to the biological relationship. Those were matters that would need to be determined by a fact-finding hearing. The potential importance of genetic and psychological parenthood was not automatically extinguished by the removal of status of legal parenthood. Social and psychological parenthood could and often did exist alongside legal parenthood.
The most important factor was the connection each father was allowed to develop with the child. Leave would be granted for each father to apply for contact however, the application in respect of one of the fathers to apply for a residence order was refused.