COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE - FAMILY DIVISION
MR JUSTICE HEDLEY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE RICHARDS
|- and -
E (A child)
Miss Judith Parker QC (instructed by Thomas Eggar, Solicitors) for the 1st Respondent
Robin Tolson QC and Miss Heather Pope (instructed by CAFCASS Legal) for the 2nd Respondent
Hearing date : 5th April 2006
Crown Copyright ©
Lord Justice Wall :
"It is declared that Mr. J is not a 'parent' of E within the meaning of s 10(4)(a) of CA 1989 and requires leave under CA 1989 section 10(1)(a)(ii) to make an application for an order under CA 1989 section 8 in relation to E."
" .. to take the advice of Dr. E (a consultant psychiatrist) as to how and when E should be informed of her origins and to liaise with CAFCASS and to consider any advice offered by CAFCASS on this issue."
i) On 17 July 1977, Mr. J and Mrs C went through a ceremony of marriage. At that point, Mrs. C was a spinster aged 20. Mr. J was 30, and suffering from gender dysmorphia. Although living as a man since approximately the age of 17, he had been registered on the day after his birth as a female, and, at the date of the ceremony of marriage was, both in fact and in law a woman. This was something he knew, and which he concealed both from Mrs. C and from the priest who conducted the ceremony.
ii) Thereafter Mr. J and Mrs. C lived together for many years as though husband and wife. Mrs. C remained in ignorance of the fact that Mr. J was a woman.
iii) C and E were conceived by means of AID in 1986 and 1991 respectively. Although what Mr. J said to the clinic which provided the treatment has never been the subject of judicial investigation, it is plain that he did not disclose the fact that he was a woman to anybody involved in the process.
iv) The relationship between Mr. J and Mrs. C broke down in 1994 and Mrs. C filed a petition for divorce on 22 April of that year. During the divorce proceedings she saw a copy of Mr. J's birth certificate and realised (for the first time) that Mr. J was a woman.
v) On 26 May 1994 the divorce petition was dismissed, and proceedings taken for nullity of marriage. On 19 August 1994, a decree nisi of nullity was pronounced in undefended proceedings in the county court, in which "the marriage in fact had and solemnised" on 7 July 1977 was "pronounced and declared to have been by law void by reason of at the date of the said ceremony the parties were not respectively male and female". That decree nisi was made absolute on 10 October 1994.
vi) On 18 May 1995, the President of the Family Division, Sir Stephen Brown, dismissed Mr. J's application for both direct and indirect contact with C and E. No contact between E and Mr J has taken place since.
vii) On 25 January 1996, Hollis J dismissed Mr. J's application for ancillary relief in the nullity proceedings on the determination of a preliminary issue as to whether Mr. J should be debarred from continuing his claim for ancillary relief on the grounds that it was contrary to public policy. Hollis J held that by purporting to marry Mrs. C, Mr. J had committed perjury.
viii) In April 1996, Mr and Mrs. C married.
ix) On 21 November 1996 this court (Ward and Potter LJJ and Sir Brian Neill) dismissed Mr. J's appeal against Hollis J's order: - see S-T (formerly J) v J (supra). The Court was divided in its reasoning. Ward LJ took the view that the principle of public policy that no one should profit from their own wrong applied; the majority (Potter LJ and Sir Brian Neill) took the view that the principle of public policy identified was not determinative, but that on the facts, and in the light of Mr. J's conduct, no court could properly have exercised its discretion to grant him ancillary relief.
x) On 25 April 1997, Sir Stephen Brown P dismissed a renewed application by Mr. J for contact with the two children.
xi) In April 1999, Mr. and Mrs C issued adoption proceedings in relation to the children. On 19 April 1999, the President of the Family Division, Dame Elizabeth Butler-Sloss gave directions for the trial of a preliminary issue as to whether Mr. J was to be regarded as a parent of either child within the meaning of the Adoption Act 1976. In September 1999, however, Mr. and Mrs. C withdrew the application.
xii) On 20 November 2000, Mr. J issued a form C1 seeking specific issue and prohibited steps orders in relation to each child. On 3 November 2004 HH Judge Barnett directed the trial of the two preliminary issues determined by Hedley J on 29 July 2005.
xiii) On 1 June 2005, Mr. J obtained a Gender Recognition Certificate (GRC) under GRA 2004. This shows (1) his gender to be male, and (2) that he is, from 1 June 2005 "of the gender shown". He has also obtained a fresh birth certificate, giving his sex at birth as male.
The relief sought by Mr. J in the CA 1989 proceedings
i) A prohibited steps order that the children should not be informed of: -
a) their parentage, and
b) the reasons for the breakdown in relationships and in particular Mr. J's gender save at such times and in a manner advised by Dr E (a consultant psychiatrist) or such other consultant child psychiatrist as may be agreed;
ii) a specific issue order that Mrs. C seek the advice of Dr. E; and
iii) an order that Mrs C swear an affidavit setting out whether she intends to proceed in accordance with a letter dated 6 November 2002.
Is the relief sought by Mr. J in the proceedings under CA 1989 justiciable?
The applicable statutory provisions: CA 1989
"8 Residence, contact and other orders with respect to children
(1) In this Act
"a prohibited steps order" means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;
"a specific issue order" means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child."
The definition of parent: which statute?
"28 Meaning of "father"
(1) . this section applies in the case of a child who is being or has been carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination.
(a) at the time of the placing in her of the embryo or the sperm and eggs or of her insemination, the woman was a party to a marriage, and
(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,
then the other party to the marriage shall be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her insemination (as the case may be).
(3) If no man is treated, by virtue of subsection (2) above, as the father of the child but
(a) the embryo or the sperm and eggs were placed in the woman, or she was artificially inseminated, in the course of treatment services provided for her and a man together by a person to whom a licence applies, and
(b) the creation of the embryo carried by her was not brought about with the sperm of that man,
then that man shall be treated as the father of the child .
(7) The references in subsection (2) above . to the parties to a marriage at the time there referred to
(b) include the parties to a void marriage if either or both of them reasonably believed at that time that the marriage was valid; and for the purposes of this subsection it shall be presumed, unless the contrary is shown, that one of them reasonably believed at that time that the marriage was valid."
"(3) Sections 27 to 29 of this Act shall have effect only in relation to children carried by women as a result of the placing in them of embryos or of sperm and eggs, or of their artificial insemination (as the case may be), after the commencement of those sections.
(4) Section 27 of the Family Law Reform Act 1987 (artificial insemination) does not have effect in relation to children carried by women as the result of their artificial insemination after the commencement of sections 27 to 29 of this Act."
"The apparent ease with which they were able to obtain this treatment without the truth being disclosed or discovered is, for me, one of the puzzling and, I feel bound to add, unsatisfactory features of the case."
"27 Artificial insemination
(1) Where after the coming into force of this section a child is born in England and Wales as the result of the artificial insemination of a woman who
(a) was at the time of the insemination a party to a marriage (being a marriage which had not at that time been dissolved or annulled); and
(b) was artificially inseminated with the semen of some person other than the other party to that marriage,
then, unless it is proved to the satisfaction of any court by which the matter has to be determined that the other party to that marriage did not consent to the insemination, the child shall be treated in law as the child of the parties to that marriage and shall not be treated as the child of any person other than the parties to that marriage.
(2) Any reference in this section to a marriage includes a reference to a void marriage if at the time of the insemination resulting in the birth of the child both or either of the parties reasonably believed that the marriage was valid; and for the purposes of this section it shall be presumed, unless the contrary is shown, that one of the parties so believed at that time that the marriage was valid "
" on the facts as I have found them to be, a matrimonial relationship between the petitioner and the respondent was a legal impossibility at all times and in all circumstances, whereas a marriage which is void on the grounds of bigamy, non-age or failure of third party consents, might, in other circumstances, have been a valid marriage."
"By s 11(c) of the 1973 Act, a marriage is void if the parties are not respectively male and female. It is plain that the use of the word 'marriage' in such a case is no more than convenient shorthand for a purported ceremony of marriage. As stated in Jackson The Formation and Annulment of Marriage (2nd edn, 1969) p 1"
'If two persons of the same sex contrive to go through a ceremony of marriage, the ceremony is not matrimonial at all: it is certainly not a void marriage, and matrimonial principles have no application to such a "union"; but the participants in the ceremony almost certainly will commit a criminal offence of giving false statements for the purpose of obtaining a marriage certificate.'
For the purpose of determining whether a particular human being is of a particular sex, the criteria are biological: see Corbett v Corbett (orse Ashley)  2 All ER 33 at 48,  P 83 at 106 and Rees v UK (1985) 7 EHRR 429 (App 9532/81), (1986) 9 EHRR 56 and Cossey v UK (1990) 13 EHRR 622. While it may be that the advance of medical science may lead to a shift in the criteria applied by the English courts, it is plain that at present, the position is that laid down in Corbett v Corbett and that, even in jurisdictions which have extended the criteria in the case of transsexuals, a 'female to male' transsexual is not generally regarded as having satisfied the criteria of masculinity unless endowed (by surgery or otherwise) with apparent male genitalia. In those circumstances it is also plain that the defendant was well advised not to defend the suit for nullity brought against him by the plaintiff.
However, although a marriage void for the reason that the two parties are of the same sex is not merely a void but a meretricious marriage which cannot give rise to anything remotely matrimonial in character, this has not historically prevented a party from seeking a decree of nullity in respect of it."
Lord Justice Richards :