QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| THE QUEEN ON THE APPLICATION OF K, A CHILD, by her litigation friend MT
- and –
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Robin Tam QC and Mr John-Paul Waite (instructed by the Government Legal Department) for the Defendant
Hearing date: 22nd March 2018
Crown Copyright ©
HELEN MOUNTFIELD QC:
"For the purposes of this Act, a child's father is –
(a) the husband, at the time of the child's birth, of the woman who gives birth to the child;" or(b) where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008, that person, or(ba) where a person is treated as a parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that person, or(c) where none of the paragraphs (a) to (ba) applies, a person who satisfies prescribed requirements as to paternity."
The legal framework
The law as to acquisition of British Nationality by birth
"the law of England has from time immemorial looked upon a bastard as the child of nobody, that is to say, the child of nobody except its mother".
"In this Act and enactments passed and instruments made after the coming into force of this section, references (however expressed) to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father and mother of either of them, or the father and mother of any person through whom the relationship is deduced, have or had been married to each other".
"For the purposes of this Act –
(a) the relationship of mother and child shall be taken to exist between a woman and any child (legitimate or illegitimate) born to her; but
(b) subject to section 47, the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him;
and the expressions 'mother', 'father', 'parent', 'child' and 'descended' shall be construed accordingly.
a. The applicant was a child living in the United Kingdom; and
b. His father was a British citizen; and
c. The Secretary of State was satisfied as to paternity; and
d. If the child was aged 16 or over, he was of good character.
Although it is not stated in the policy, this was presumably also only the case if the child's mother was not married to someone else, because of the form of section 50(9) of the BNA 1981 which was then in force, and which would have construed a child born within marriage as a child of that marriage.
"removing the present statutory distinctions between legitimate and illegitimate children where there is the required proof of paternity".
"(9) For the purposes of this Act, a child's mother is the woman who gives birth to the child.
(9A) For the purposes of this Act a child's father is –
(a) the husband, at the time of the child's birth, of the woman who gives birth to the child; or
(b) where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 (father), that person, or
(c) where neither paragraph (a) nor paragraph (b) applies, any person who satisfies required requirements as to paternity" .
a. the child of the woman who gave birth to them; and
b. the child of the husband of the woman who gave birth to them; or
c. the child of a deemed father or female co-parent of the child under the legislation dealing with IVF (as to which see paragraphs 42-52 below); or
d. if there is no father (or female co-parent) under that legislation, a person who satisfies prescribed requirements as to proof of paternity.
"(1) If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may if he thinks fit, cause him to be registered as such a citizen (emphasis added) …
(2) A person born outside the United Kingdom and the qualifying territories shall be entitled, on an application for his registration as a British citizen made while he is a minor, to be registered as such a citizen if the requirements specified in subsection (3) … are fulfilled in the case of either that person's father or mother ("the parent in question").
(3) The requirements referred to in subsection (2) are –
(a) that the parent in question was a British citizen by descent at the time of the birth; and
(b) that the father or mother of the parent in question –
(i) was a British citizen otherwise than by descent at the time of the birth of the parent in question … and
(c) that, as regards some period of three years ending with a date not later than the date of the birth –
(i) the parent in question was in the United Kingdom or a qualifying territory at the beginning of that period; and
(ii) the number of days on which the parent in question was absent from the United Kingdom and the qualifying territories in that period does not exceed 270."
'Deemed' parenthood in cases of assisted conception
The relevant provisions of the Human Rights Act 1998 ("the HRA")
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
The submissions of the parties
a. That there was no discrimination on grounds of 'birth', as alleged by the Claimant, and so Article 14 was not engaged. This was not discrimination on grounds of 'birth' in the sense of a distinction between legitimate and 'illegitimate' children (since a child born out of wedlock could acquire citizenship through his or her father under section 50(9A)(c) of the BNA 1981 unless another person was deemed a father by virtue of section 50(9A) subsections (a)-(ba)). Rather, the law's treatment of a child as the deemed child of his or her mother's husband at the time of their birth was, if anything, a distinction based on whether the child's mother was free to marry at that time of the child's birth, the Defendant did not submit that this was a basis upon which the distinction between a child such as the Claimant and the child of a marriage was based. The Defendant also submitted that if this was the proper analysis of the distinction between the Claimant and other children with whom she compared herself, this was not discrimination on grounds of 'birth'.
b. That in any event even if Article 14 was engaged, in many circumstances automatic conferral of citizenship through one's natural father may not be a benefit.
c. That if there is discrimination, it is proportionate and justified by the legitimate aim of ensuring that there is clarity as to who is a child's father, through whom the child can gain citizenship, and that the legislature was entitled to take the policy choice that it was best for clarity and consistency if a child born within wedlock was conclusively presumed to be a child of that marriage. In those circumstances, the right to apply for the exercise of a broad discretion as to the grant of citizenship under section 3(1) of the BNA 1981 was a sensible and proportionate way of dealing with the complex issues which arose. This was an area of social policy which attracted a broad discretionary area of judgment.
d. Finally, it was submitted that even if, contrary to these submissions, there was discrimination contrary to Article 14 ECHR, it was not possible to 'read down' the legislation in the way the Claimant suggested without thwarting the clear and unambiguous language of section 50(9A). The only appropriate remedy would be the exercise of the Court's discretion to make a declaration of incompatibility under section 4 HRA.
Discrimination on grounds of status
Is there any prima facie discrimination in any event?
(a) is the legislative objective (legitimate aim) sufficiently important to justify limiting a fundamental right;
(b) are the measures which have been designed to meet it rationally connected to it;
(c) are they no more than are necessary to accomplish it; and
(d) do they strike a fair balance between the rights of the individual and the interests of the community?
Conclusion on discrimination issue
Addendum - Totally without merit