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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A & Anor v P & Ors  EWHC 1738 (Fam) (08 July 2011)
Cite as:  Fam 188,  Fam Law 1080,  3 WLR 369,  EWHC 1738 (Fam),  1 FCR 408,  2 FLR 145
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This judgment is being handed down in private on Friday 8th July 2011. It consists of 10 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Strand, London, WC2A 2LL
B e f o r e :
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Ms Deirdre Fottrell (instructed by Mullinger Banks Solicitors) for the 3rd Respondent
Hearing dates: 7th June 2011
Crown Copyright ©
Mrs Justice Theis DBE:
'Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, is estate. Provided that this subsection shall not apply to causes of action for defamation…'
(1) The application was made by two people "the applicants" (s 54 (1))
(2) The child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo (s 54(1)(a))
(3) The gametes of at least one of the applicants were used to bring about the creation of the embryo (s 54(1)(b))
(4) The applicants were married (s 54(2)(a)
(5) The application was made within 6 months of B's birth (s 54 (3))
(6) The mother is domiciled in the United Kingdom (s 54 (4) (b))
(7) The surrogate mother and her husband have unconditionally agreed to the making of the parental order (s54 (6))
(1) s 54 (4) (a) that at the time of the application and the making of the order the child's home is with the applicants.
(2) s 54 (5) that at the time of the making of the order both the applicants have attained the age of 18 years.
(3) Whether the court should exercise its discretion and give retrospective approval to the sums paid which would otherwise have contravened s 54(8)
S 54 (4) At the time of the application and the making of the order
(a)The child's home must be with the applicants....
S 54 (5) At the time of the making of the order both the applicants must have obtained the age of 18.
(i) That it was the common intention of the applicants as the commissioning parents and the surrogate parents that the child should be the child of both applicants.
(ii) That the child is the biological child of the deceased applicant.
(iii) That considerable emotional and social advantages will follow for the child if a parental order is made which reflects the factual circumstances in which he will grow up; that he was the child of his parents as a matter fact and as a matter of law.
(i) The court must read all primary and secondary legislation so as to give effect to the provisions of the Human Rights Act 1998.
(ii) The effect of s 3 HRA is that when considering the interpretation of legislation the court must have regard to not just the intention of Parliament but it should seek to adopt any possible construction which is compatible with and upholds convention rights. (R v A  UKHL 25 para 44; Ghaidan v Godin-Mendoza  UKHL 30 para 41)
(iii) Article 8 includes a positive obligation which requires the State to ensure that de facto relationships are recognised and protected by law (Marckx v Belgium 2 EHRR 330 para 31)
(iv) Article 8 requires the court to provide protection of the rights of children which are real and effective and not theoretical and illusory.
(i) That Parliament intended that surrogacy arrangements can only be made by persons in 'an enduring relationship'.
(ii) That it did not intend that persons who were single could be commissioning parents.
(iii) It cannot be said to be the intention of Parliament that where a commissioning parent dies at such a late stage of the process of a parental order application that the child should be denied the legal and social benefits which flow from having his relationship with both parents recognised by law.
(iv) Each case must be decided on its facts. In this case (as in the case of WM ibid) the court could not be said to be going behind the purpose of the legislation or create a precedent whereby single applicants could defeat the intention behind the legislation or that applicants under 18 years of age could seek parental orders.
(i) There is no legal relationship between the child and his biological father who is also the commissioning father
(ii) The child is denied the social and emotional benefits of recognition of that relationship
(iii) The child may be financially disadvantaged if he is not recognised legally as the child of his father (in terms of inheritance)
(iv) The child does not have a legal reality which matches the day to day reality
(v) The child is further disadvantaged by the death of his biological father
'1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without lawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protections, with a view to re-establishing speedily his or her identity.'
(1) By operation of s 33, 25, 38 and 48 HFEA 2008 if no further order was made by the court concerning this child his mother and father, as a matter of English law, would be the surrogate mother and her husband 'for all purposes' (s 48(1)).
(2) The consequences of a parental order in favour of both Mr and Mrs A on the status of the child is as follows
(i) The child becomes the legal child of both applicants;
(ii) The parental responsibility of the surrogate mother and her husband is extinguished;
(iii) The child is registered on the parental order register and the child is issued with a birth certificate;
(iv) It has a transformative effect on the child's legal status in that he becomes the legal child of both applicants;
(v) Each of the applicants has the same legal status is respect of the child.
(3) A declaration of parentage under s 55A Family Law Act 1986 ('FLA 1986') would be available. The courts have made declarations of parentage in a case in which the legal parentage differs from the biological parentage of a child e.g. where the child was subsequently adopted but wished to have acknowledgement of their 'natural' or biological parentage M v W (declaration of parentage)  2 FLR 270. They submit there is a fundamental difference between a declaration as to legal status and a declaration that a person is the 'natural parent' of a child. In this case a declaration of parentage would not assist in establishing that Mr A was the child's legal parent. By its nature a declaration can only declare or state the current legal position, it can't transform the legal position. Therefore a declaration as to the legal position would only serve to confirm that the surrogate father remains the legal father of the child. In M v W at paragraph 18 Hogg J stated "…The declaration [of natural parentage] sought would not alter or affect the validity of the adoption order made in May 1965. That is a forever order by which the petitioner became a legal member of the adoptive family and the adopters his legal parents."
(4) A declaration of parentage in this case would be insufficient in this case for the following reasons:
(i) If no further orders were made the surrogate's husband would continue to be recognised in law as the child's father, notwithstanding the fact that the surrogate has positively relinquished those rights and the child's legal status would therefore bear no relation to the everyday reality of the situation;
(ii) If Mrs A sought to adopt the child then, whilst the surrogates' legal status would be extinguished by virtue of the adoption order, neither the adoption nor declaratory relief would enable B to become the legal child of Mr A.
(5) The key issue is the legal status of the child vis a vis Mr and Mrs A and whether that can and should be recognised by law. Following the positive obligation identified by Marck v Belgium the court should seek to ensure that the child is in an equivalent relationship with each parent. The court is therefore seeking to protect the rights to respect to family life of the unit as well as each of the individual members. The rights of the child and his interests have
'…primacy of importance…This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. Where the best interest of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them.' (ZH (Tanzania) v Secretary of State for the Home Department (ibid) per Lord Kerr SCJ para 46).
Only a parental order would have the effect of transforming the legal status of the child such that both commissioning parents are recognised as being the legal parents of the child. The effect of a parental order is the same as an adoption order.
(6) Does an adoption order to Mrs A provide a remedy to the alleged breach of the Article 8 rights of the child which would arise is a parental order is not made? The combined effect of s 46 and 67 of the Adoption and Children Act 2002 is that an adoption order, like a parental order, has a transformative effect. They are the only orders that have that effect in respect of both parents, but both orders are not available as owing to Mr A's death a joint adoption application is now not possible.
(7) The practical impediments to the making of an adoption order in favour of Mrs A are as follows:
(i) Further consents from the surrogate parents would be necessary (s19 ACA 2002) or their consent would need to be dispensed with (s 20 ACA 2002).
(ii) An order from the High Court would be required to authorise the placement as the child has not been placed for adoption by an adoption agency.
(iii) If consents were obtained the mother would have to apply to adopt the child as a step-parent pursuant to s 51(2) ACA 2002 ('An adoption order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent of the person to be adopted')
(iv) If the mother was to be make that application, the court would first need to make a declaration of parentage under s 55A FLA 1986 and the Registrar permit the birth certificate to be changed in order to facilitate a step-parent adoption.
(vi) This has a distorting effect because the Mr A may be recognised on the birth certificate but the Mrs A (who may also be the child's genetic parent) is an adoptive parent.
(vii) Where one of the adopters is the step parent the register is still marked 'adopted' and the tracing of the child's natural parents is still done in the same manner as for any other adopted child.
(viii) It is not clear that the adoption register certificate can include the father if the s 55A FLA 1986 declaration is made and the birth certificate is altered, as he cannot participate in the adoption process.
(8) This case is fundamentally about identity rights and recognition of a relationship which is central to the child, but cannot be developed by any other route.
(9) In the absence of a parental order a legal relationship between Mrs A and B could be created by way of a residence order or a special guardianship order. However these orders would not negate the legal relationship between the child and the surrogate mother and father under English law and only last during the child's minority.
(1) For the reasons outlined above no other order or combination of orders will recognise B's status with both Mr and Mrs A equally.
(2) Article 8 is engaged and any interference with those rights must be proportionate and justified.
(3) In the particular circumstances of this case the interference cannot be justified as no other order can give recognition to B's status with both Mr and Mrs A in the same transformative way as a parental order can.
(4) To interpret s 54(4) (a) and 54(5) in the way submitted will not offend against the clear purpose or policy behind the requirements listed in s 54. It will not pave the way for single commissioning parents to apply for a parental order or orders being made in favour of those under the age of 18 years.
(5) Mr and Mrs A were lawfully entitled to apply for a parental order when they made their application.
(6) Such an interpretation will protect the identity of B and the family unit in accordance with Article 8 UNCRC.
(7) It is clearly in B's interests that a parental order is made to secure his legal status with both Mr and Mrs A.
(8) B's home was with Mr and Mrs A from the time of his birth up until the time of Mr A's death, thereafter he has remained in the care of Mrs A. But for Mr A's death B would have remained in the care of them both.
(9) Mrs A is now 36 years and Mr A would have been 34 years.