On 29^th April the Court of Appeal handed down the judgment in R (On the Application of) McConnell v the Registrar General for England and Wales.

The case concerned a person (McConnell) who had been born female but at the age of 22 transitioned and obtained a Gender Recognition Certificate as a male on declaring that he intended to continue to live in the acquired[male] gender until death. Ten days later he commenced fertility treatment and conceived a child using his own eggs and donor sperm. When the child was born he wished to describe himself as “father” on the birth certificate but the Registrar General held that this was not possible and that since he was the person who had given birth he had to be recorded as “mother”. It followed from that that the declaration of parentage (and the consequent recognition of parental responsibility) sought by the child YY was to be granted. McConnell was recognised by the President as YY’s mother but not, as YY had sought, as his father. It was this decision that was challenged in this litigation. The President of the Family Division had found in favour of the Registrar General. (That judgement can be found here) McConnell appealed to the Court of Appeal. The AIRE Centre was granted permission to intervene both before the President and at the Court of Appeal. The Court of Appeal also found in favour of the Registrar General. In doing so it upheld the judgement of the President of the Family Division . The Court of Appeal’s judgment can be found here.

 

The Court of Appeal considered that this was not a matter which should be disposed of by a declaration under the Human Rights Act 1998, that the existing law was incompatible with the ECHR but that it would be better addressed by parliament if it was untrammelled by such a finding (paras 81-82) and could consider “the widest possible range of opinions” and not just those put forward by the parties to specific litigation.

 

The AIRE Centre intervened both before the President and at the Court of Appeal with the purpose of putting before the courts all the material, including international material, which might be useful in assessing the all-important best interests of children generally who would be affected in such scenarios. The specific child in this case ,YY, was represented by his own legal team.

 

Both the President and The Court of Appeal acknowledged the relevance of the AIRE Centre‘s intervention which primarily focussed on the UNCRC (Court of Appeal judgment, paras 83 – 86 ). The Court of Appeal recognised that the legislature must treat the best interests of the child as a primary consideration when drafting or reforming the law and went on to consider that it had done so in the legal framework at issue in this case. However, the court did not expressly articulate that the court was under that same duty when reaching a decision in this case.

 

Leave to appeal to the UKSC was refused, although the principle parties have the option of seeking leave directly from that court. 

The AIRE Centre is most grateful to those who represented it (pro bono) – in particular Tammy Knox and her team from Pennington Manches Cooper LLP, Samantha Broadfoot QC of Landmark Chambers and Andrew Powell of 4 Paper Buildings. The AIRE centre’s in-house team was led by Nuala Mole assisted by Ruaridh Owens, Bianca Valperga and supported by several interns.