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C v M & Anor
Summary of Judgment: [2026] NICA 32
Factual and Procedural Background
The Appellant and her wife are a same-sex female couple who cohabited from 2011 and married in 2021. In 2014 they sought to start a family but were informed they were ineligible for publicly funded IVF at that time because they were a same-sex couple. They therefore used sperm donated outside the Human Fertilisation and Embryology Act 2008 (HFEA). The donor agreed verbally (February 2018) and in a written agreement (March 2019) that he would have no role in the child's life. The child was born prematurely in June 2019.
After the birth the donor began proceedings seeking parental responsibility and contact. The Appellant applied in February 2020 under Article 31B of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 ("the 1989 Order") for a declaration of parentage to be named as the child's second parent. The child's biological mother supports the Appellant; the donor no longer opposes the Appellant's application. The Secretary of State for Health & Social Care and the Departments of Health and Finance opposed the application ("the Departments"). The High Court (Judge [Last Name]) refused the Appellant's application on 4 October 2022, finding a declaration would be "manifestly contrary to public policy" (relying on A v O & J [2022] NICA 3). The Appellant appealed. Oral judgment in this appeal was delivered by the Court of Appeal on 12 June 2026, and the appeal was dismissed.
Legal Issues Presented
- Whether the Appellant should be legally recognised as the child's parent and entitled to have her name entered on the birth certificate.
- Whether granting a declaration of parentage under Article 31B of the 1989 Order would be "manifestly contrary to public policy" where conception and treatment occurred outside the HFEA regime.
Arguments of the Parties
Appellant's Arguments
- The Appellant sought recognition as the child's legal parent and entry on the birth certificate despite conception outside the HFEA, arguing that refusing the declaration would perpetuate unlawful discrimination because same-sex marriage and access to publicly funded IVF were not available to the couple at the relevant time.
- The Appellant relied on authority such as Re Close & Others [2020] NICA 20 to argue discriminatory effects of the prohibition on same-sex marriage and contended this should distinguish the present case from A v O & J [2022] NICA 3.
- The Appellant argued the court should not treat this matter as falling within an inflexible statutory code and should make an exception to avoid perpetuating discrimination.
Respondents' (Departments') Arguments
- The Departments submitted that A v O & J [2022] NICA 3 is dispositive and that it would be manifestly contrary to public policy to grant a declaration outside the HFEA scheme; the statutory scheme must be upheld and no case-by-case exceptions permitted.
- An ancillary point was made about section 6 of the Human Rights Act 1998, but the court did not need to decide that issue.
Notice Party / Child's Position
- The child, represented by the Official Solicitor (Attorney [Last Name]), emphasised psychological parenthood but accepted that psychological parenthood alone does not entitle a declaration of parentage; the Appellant already has parental responsibility by agreement under the Children (Northern Ireland) Order 1995.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ms J, Ms A and Mr O [2022] NICA 3 | That granting declarations of parentage outside the HFEA statutory provisions would be manifestly contrary to public policy. | Regarded as directly applicable and dispositive; the Court affirmed its approach and declined to depart from it. |
| AB v CD [2013] EWHC 1418 (Fam) | Respect for the HFEA statutory scheme; courts should not grant parental status where the statutory regime has not been complied with. | Cited to support the need to uphold the tightly regulated HFEA regime and resist ad hoc departures. |
| Re Close & Others [2020] NICA 20 | Findings on unlawful discrimination arising from prohibition on same-sex marriage (contextual background). | Relied on by the Appellant to argue discrimination; considered but distinguished and not determinative. |
| Day & Anor v The Governor of the Cayman Islands & Anor [2022] UKPC 6 | Critical commentary on Re Close (cited in the opinion as context). | Mentioned as a later critique of Close; not relitigated or relied upon to alter outcome. |
| JR176(2) [2022] NIKB 21 | Recognition that IVF eligibility criteria in Northern Ireland were revised in 2019 to allow same-sex couples access in some circumstances. | Used to note change in policy after the child's conception but not sufficient to alter public policy analysis. |
| X v Y [2023] EWFC 217 | Courts willing to grant declarations where administrative failures by clinics (e.g., record-keeping) undermine statutory compliance. | Distinguished: such administrative-failure cases do not apply where treatment did not occur in a licensed clinic. |
| Re A and Others [2015] EWHC 2602 (Fam) | Examples of cases dealing with registration/parentage issues within HFEA context. | Cited as part of jurisprudence showing narrow routes for declarations; not directly applicable on facts. |
| A&B v Bourne Hall Clinic [2021] EWHC 1750 | Further authority on clinic record-keeping failures and consequent remedial relief. | Distinguished for lack of licensed-clinic treatment in present case. |
| A v B [2025] EWFC 43 | Recent authority illustrating approach to declarations where clinic failures occurred. | Noted but inapplicable to the facts here. |
| X v Italy (Application No. 42247/23) | ECtHR discussion of relationship between legal parentage and child identity under Article 8 ECHR. | Used to acknowledge identity concerns but also to note availability of alternative legal routes (e.g., adoption) can affect Article 8 analysis. |
| P v Q and F (Child: Legal Parentage) [2025] 2 WLR 75 | Emphasises importance of legal parentage and statutory remedies; discusses HFEA respect for legislative scheme. | Cited to underline that legal parentage determination follows statutory and factual analysis and that policy arguments cannot alter legal analysis. |
| Re R (A child) (IVF: Paternity of Child) [2005] 2 AC 621 | Warning that legal parenthood should not be based on fiction; importance of legal certainty. | Applied to support the importance of legal certainty and fidelity to statutory criteria. |
| Mrs U v Centre for Reproductive Medicine [2002] EWCA Civ 565 | Parliament's legislative scheme for assisted reproduction should be respected by centres, HFEA and courts. | Quoted to support deference to the statutory scheme and rejection of ad hoc judicial alteration. |
| Re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43 | Parentedness can be genetic, gestational and psychological; law nonetheless must identify legal parents. | Cited to acknowledge different manifestations of parenthood while stressing legal identification is required. |
| M v F & H [2014] 1 FLR 35 | Discusses limits of HFEA as exclusive code and the role of common law where the statute does not apply. | Cited for jurisprudential context; court concluded HFEA governs situations within its footprint and supports limited exceptions. |
Court's Reasoning and Analysis
The court framed the dispute as whether a declaration of parentage should be granted despite conception and treatment falling outside the regulated HFEA framework. The court reviewed the HFEA scheme in detail (sections 33–47), identifying two primary statutory gateways for a non-biological female partner to acquire legal parenthood: section 42 (marriage or civil partnership at time of conception, subject to consent) and section 43 (treatment in a licensed UK clinic combined with the agreed female parenthood conditions in section 44).
The court accepted that, at the relevant time, same-sex marriage and NHS-funded IVF were not available to this couple and that financial constraints led them to seek unlicensed donor conception. However, the court observed that the HFEA provided routes (civil partnership or licensed clinic treatment) which the couple did not or could not pursue. The court emphasised that Parliament designed a comprehensive, tightly regulated statutory scheme to ensure certainty, clarity and consistency in legal parentage and that public policy requires upholding the integrity of that scheme.
The court considered precedents (notably A v O & J [2022] NICA 3 and AB v CD [2013] EWHC 1418) which had rejected case-by-case exceptions to the HFEA and refused declarations outside the statutory routes. It noted that exceptions had been permitted only in limited circumstances involving administrative or clinic failings (e.g., defective documentation), which are not present here because the treatment did not take place in a licensed clinic. The court also addressed the child's interests and psychological parenthood but concluded that psychological parenthood does not displace the statutory requirement for legal parenthood.
On human rights arguments, the court observed that the Appellant's discrimination claims were not pursued on appeal and, in any event, the statutory scheme was not shown to be incompatible in a way that justified overriding its clear provisions. The court found no error in the trial judge's reliance on A v O & J and concluded that making a declaration in these circumstances would be manifestly contrary to public policy because it would undermine the statutory scheme.
Holding and Implications
APPEAL DISMISSED
Holding: The Court of Appeal affirmed the High Court's refusal to grant a declaration of parentage; it held that granting such a declaration where conception and treatment fell outside the HFEA statutory gateways would be manifestly contrary to public policy.
Implications: The Appellant will not be legally recognised as the child's parent for the purposes of birth registration; the child's birth certificate will not be amended to include the Appellant. The Appellant retains parental responsibility by the existing High Court order under the Children (Northern Ireland) Order 1995. The decision affirms existing authority and does not establish a new exception to the HFEA statutory scheme.
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