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Court of Appeal delivers ground-breaking decision concerning same-sex parents and children who live abroad

In a ground-breaking decision, the Court of Appeal has overturned the decision of the High Court and has granted parental status to a woman whose former same-sex civil partner has taken their five children to live in Dubai.


Bradie Pell – partner and head of Graysons’ family team

The case involves five children who now live in Dubai and are all British citizens.  They were born to same-sex couple, A & B, using fertility treatment.  B is their biological mother and all five children share the same genetic father.  A was not named on the birth certificates.

At the time of the births – between 2008 and 2013, the couple were civil partners, but this was dissolved in 2016.

B moved the elder children to Dubai at the end of 2014 whilst the younger ones stayed in the UK with A before joining their siblings at beginning of 2015.  A stayed in the UK, but she maintained contact with the children until 2019.  She applied for a child arrangements order in the UK as she was unable to do so in Dubai, where same-sex relationships are criminalised.  She claimed that under the Family Law Act 1986 (FLA), the UK had jurisdiction.  She believed that she was a legal parent to the children – B disagreed.  The High Court found that she was not the legal parent and was effectively a step-parent and that UK jurisdiction under the FLA did not exist.

A appealed the decision saying that the High Court had wrongly interpreted section 42 of the Human Fertilisation and Embryology Act 2008 when it said that there was no evidence that she had consented to the treatment.  The Court of Appeal agreed and found that A had consented and was indeed the legal parent of the children. The court also found that there was provision for jurisdiction to exist under the FLA.

Bradie Pell, partner and head of Graysons’ family law department says: “This has clarified the law relating to the parentage of children born to same-sex partners and has made it easier for English courts to apply jurisdiction where parents and children live in countries where they cannot be represented for various reasons, such as same-sex relationships.”

Author: Bradie Pell, partner and head of Graysons’ family team.

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