High Court rejects local authority application for DNA test after man mixed sperm with father’s to get partner pregnant

A High Court judge has dismissed a local authority’s applications for the use of scientific (DNA) tests and a declaration of parentage after a man mixed a sample of his sperm with his father’s sperm, in order for his partner to conceive a child.

In D (Parentage: Local Authority Application) [2024] EWHC 305 (Fam), Mr Justice Poole concluded that the local authority had “no personal interest” in the determination of the boy’s parentage.

The judge said: “A wish to uphold the public interest in maintaining accurate records of births does not confer a personal interest in the determination of such an application”.

Outlining the background to the case, Mr Justice Poole noted that when the first and third respondents (JK and PQ) were in a relationship, they were upset to find that JK struggled to conceive.

The couple carried out a procedure whereby PQ's father, RS, provided a sample of his sperm, PQ mixed it with his own sperm, and the mixture was injected into JK's vagina.

“All the adults involved consented to this procedure on the basis that if JK became pregnant and gave birth, PQ would be treated as the baby's father, and RS as its grandfather”, said the judge.

JK did become pregnant and D was born. PQ was named on his birth certificate as his father. D is now five years old.

The judge commented that the family had created a “welfare minefield” through which it will be very difficult to navigate.

D has two half-siblings, children of JK, who are F and E. F is an adult but E is a child and, with D, is the subject of public law proceedings brought by the local authority.

JK and PQ separated and initially JK cared for D and E, but the local authority brought the proceedings because of concerns about “serious harm” to D and E attributable to her actions and neglect, the judge noted.

Now, D and E live with PQ under an interim child arrangements order with an interim supervision order in favour of the applicant local authority.

Mr Justice Poole said: “D and E are doing relatively well in PQ's care and wish to remain living with him. The circumstances of D's conception form no part of the Local Authority's threshold and all parties agree that it is highly likely, subject to some presently unforeseen event, that the public law proceedings will conclude with final supervision and child arrangements orders to secure the children's placement with PQ.”

The local authority made the following applications to the court:

a. A direction under the Family Law Reform Act 1969 (FLRA 1969) s20 for the use of scientific (DNA) tests to ascertain whether such tests show that a party to the public law proceedings, namely PQ, is or is not the father of D, and for the taking of bodily samples from JK, PQ and RS.

b. A declaration as to D's parentage made under the Family Law Act 1986 (FLA 1986) s55A. 

The applications were opposed by JK, PQ, and the Children's Guardian.

Outlining submissions from the parties, the judge said counsel for the local authority “emphasised the importance of truth as to parentage” both in relation to the best interests of a child and the public interest more generally.

Counsel on behalf of JK, PQ and the Guardian did not rule out that a local authority could, in different circumstances, have a “sufficient personal interest” in the determination of an application for a declaration of parentage, but submitted that in the present case the local authority did not meet that requirement.

In his analysis, Mr Justice Poole warned that the “unusual” arrangements for D’s conception “have created the potential for him to suffer emotional harm were he to learn of them or that his biological father is not PQ, but is RS”.

He added: “However, the Local Authority do not rely on the parents' decisions about D's conception as part of the threshold under CA 1989 s31 for the making of a care order or supervision order. Neither their scheme for JK to become pregnant, nor their decisions to keep that a secret, are put forward as grounds for making CA 1989 Part IV orders.”

The judge noted that although it is not currently known with any certainty that RS, and not PQ, is D's biological father, it is known with certainty that PQ is D's “psychological father”.

Mr Justice Poole said he was satisfied that the council had no personal interest in the determination of its application under FLA 1986 s55A(1).

He said: “Here, D's birth certificate may be inaccurate and I understand that the Local Authority may not want to stand by and allow that record to stand. However, although the Applicant Local Authority in the present case is, I accept, acting from the best of motives, I do not regard it as having a sufficient personal interest.

“It does not have parental responsibility, it does not require a determination of its s55A application in order to know whether, or how, to exercise its obligations and powers in relation to D, and it does not need to know who is D's biological father in order to ensure fairness in the public law proceedings.”

He noted that that the family may wish to undergo a paternity test to tell the child at a later date "but that is a matter for them".

The local authority’s applications under FLRA 1969 s20 and FLA 1986 s55A were dismissed.

Lottie Winson