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FC v MC & DC (a minor) [2021] EWHC 154 (Fam) – court makes lives with order in favour of former same-sex partner of child's mother

Posted on 29 July 2021

The applicant and respondent had been in a same sex relationship, during which time they had arranged to have a child using donor sperm. They agreed that the respondent would be the biological (and gestational) mother. The applicant changed her name so that she had the same surname as the respondent and child. No application was made under the Human Fertilisation and Embryology Act 2008 in respect of the applicant's position, and so she was not entered on the birth certificate. It was accepted by the respondent that the intention had been that the parties would jointly parent. After the parties separated, contact took place, but the respondent objected to the applicant having parental responsibility.

The court made a joint lives with/shared care order and made a parental responsibility order in favour of the applicant. It was clear that the parties had intended that the applicant would be a parent to the child and she had remained committed to him. The evidence suggested that the child had a strong bond with the applicant and viewed her as a parent.

Emma Willing says:

The case of FC v MC & DC (a minor) [2021] EWHC 154 (Fam) highlights the importance for same sex couples seeking advice at the outset as to the legal implications of family creation. In this case, as conception took place outside of a HFEA licensed UK clinic, it was not possible for the non-birth mother to be registered on the child's birth certificate; as such she had no legal status or parental responsibility in respect to the child. Notwithstanding this, Mrs Justice Leiven made a shared 'lives with' order which automatically granted the non-birth mother parental responsibility. The judgment importantly recognised the clear intention of the parties to create a family prior to their separation and to share parenting of the child. Whilst the judgment does not address those issues arising in respect to the donor, importantly due to the circumstances of conception outside the context of a HFEA licensed UK clinic, the donor would have been both the biological and legal parent to the child and as such subject to legal rights and responsibilities (including potential financial claims being made against him). Any party considering entering into such an arrangement should do so on an informed basis to ensure the legal position of all parties is properly understood and to avoid the prospect of protracted and difficult litigation.

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