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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 >> Z (A Child) (No 2)  EWHC 1191 (Fam) (20 May 2016)
Cite as:  Fam Law 958,  EWHC 1191 (Fam),  3 WLR 1369,  HRLR 15,  Fam 25,  2 FLR 327,  WLR(D) 278
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Strand, London, WC2A 2LL
B e f o r e :
|In the matter of Z (A Child) (No 2)|
Mr Teertha Gupta QC and Mr Andrew Powell (instructed by CAFCASS Legal) for Z
Miss Samantha Broadfoot and Miss Dorothea Gartland (instructed by the Government Legal Department) for the Secretary of State for Health
Hearing date: 16 May 2016
Crown Copyright ©
Sir James Munby, President of the Family Division :
"18 Fundamentally, says Miss Isaacs, the objection to the requirement in section 54(1) of the 2008 Act that an application for a parental order can be made only by two people is that this is a discriminatory interference with a single person's rights to private and family life, which is therefore inconsistent with articles 8 and 14 of the Convention. She submits that the father's relationship with Z, actual as it now is or prospective at the time Z was born, implicates both the father's and Z's rights under article 8. She relies, if need be, upon the decision of the European Court of Human Rights in Anayo v Germany (2010) 55 EHRR 164, paras 57, 60 (though note the comment of Baker J in In re G (Children: Sperm Donors: Leave to apply for Children Act Orders)  1 FLR 1334, para 120). She also relies upon the article 12 "right to marry and to found a family" – which she construes as embracing separate rights to "marry" and to "found a family" – and upon X and Y v United Kingdom (1977) 12 DR 32 .
19 Adopting the analysis in In re G (Adoption: Unmarried Couple)  AC 173, paras 8, 107, 132, Miss Isaacs submits that being single (in contrast to being one of a couple, whether married or not) is a "status" within the meaning of article 14 of the Convention."
"I have been prepared to assume for the purposes of this judgment the correctness of Miss Isaacs's submissions based on articles 8, 12 and 14 of the Convention and of the propositions which she seeks to derive from them. There has been no need for me to come to any concluded view on these matters and it is better that I do not, for these are issues which may yet need to be considered and ruled on if, as may be, the father decides to seek a declaration of incompatibility."
"… having carefully considered the evidence and skeleton arguments filed on behalf of the [father] and the Guardian in this case, the Secretary of State concedes that the current provisions of section 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 are incompatible with Article 14 taken in conjunction with Article 8. The concession is made on the basis of the statement of reasons which is attached to this position statement."
"1 By this claim the [father] seeks a declaration that section 54(1) and (2) of the Human Embryology and Fertilisation Act 2008 is incompatible with his and [Z's] human rights under Articles 8 and / or Article 14 taken in conjunction with Article 8. The [father's] position is supported by the child, acting through his Guardian.
2 The Secretary of State has carefully considered the evidence and skeleton arguments filed on behalf of the [father] and the Guardian.
3 The Secretary of State accepts that the facts fall within the ambit of Article 8 and that Article 14 is engaged. It is accepted that there is a difference in treatment between a single person entering into a lawful surrogacy arrangement and a couple entering the same arrangement. This difference in treatment, namely the inability to obtain a parental order, is on the sole ground of the status of the commissioning parent as a single person versus the same person were he part of a couple. The Secretary of State accepts that, in light of the evidence filed and the jurisprudential developments both domestic and in Strasbourg, including for example Mennesson v France (Application no. 65192/11) taken with Wagner v Luxembourg (Application no. 76240/01), this difference in treatment on the sole ground of the status of the commissioning parent as a single person versus being part of a couple, can no longer be justified within the meaning of Article 14."
"… my client concedes that the current provisions are incompatible with Article 14 taken in conjunction with Article 8. We have not however, conceded that the provisions are incompatible with Article 8 taken alone.
In brief summary, this is because:
1) There is no Convention right, whether in Article 8 or elsewhere, to undertake a surrogacy arrangement.
2) Article 8 does not entitle a person to any particular method of obtaining legal recognition of the parent-child relationship following that arrangement. In particular Article 8 does not entitle a person to a Parental Order. Provided that there is a mechanism for ensuring that children born as a result of surrogacy arrangements lawfully performed abroad have access to a form of recognition of their legal relationship with their parents, it is up to the State to determine how that is to be achieved, subject only to questions of discrimination.
3) The most common method for providing legal recognition of the parent-child relationship in surrogacy cases across Europe is through adoption. There has been no suggestion in any of the Strasbourg cases that the provision of adoption in surrogacy cases instead of another form of recognition, is a breach of Article 8. It is only because the UK has a different method which is available to couples but not to single people, that the issue arises. This is in reality, a discrimination case. That is the basis of the concession.
In considering the Article 8 question the court would be reminded:
1) When considering primary legislation in the field of social policy, the Courts have a reviewing role and must accord particular deference to policy choices made by Parliament – see e.g. Wilson v First County Trust Ltd (No 2)  1 AC 816, 844 at .
2) It is necessary to concentrate on the scheme as a whole, even if the scheme might be said to have interfered with an individual's rights and in assessing that scheme the question is not whether the existing law is unfair and could be made fairer: Lawrence v Fen Tigers Ltd (No 3)  1 WLR 3485 at [56-57] and  (SC).
3) Further, a State may, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case even if this might result in individual hard cases: Animal Defenders International v United Kingdom (2013) 57 EHRR 607 (Grand Chamber) at §106.
In summary therefore, it is my client's position that whilst the regulatory requirements for adoption are more demanding than those required for a parental order, adoption nonetheless remains an available solution and its availability means that there is no breach of [the father's] or [Z's] rights under Article 8. We accept however, that the exclusion of [Z] and [the father] from obtaining a parental order on the sole ground that [the father] was not part of a couple is discrimination contrary to Article 14 taken in conjunction with Article 8."
"Sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 are incompatible with the rights of the Applicant and the Second Respondent under Article 14 ECHR taken in conjunction with Article 8 insofar as they prevent the Applicant from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple."
"in making a declaration, it behoves the court precisely to identify in the circumstances of the successful applicant the factors which precipitate the provision's infringement of his human rights. In addressing its task of fashioning a response to the declaration, Parliament deserves no less."
They invite me to elaborate my reasoning. I see no need to do so and every reason why it would be unwise to explore in any more detail a number of difficult points, in particular in relation to alleged incompatibility on the basis of article 8 alone, on which in the event I have heard no argument.
"Of course, it is for Parliament to decide how to respond to a declaration of incompatibility, and in particular how to change the law. However, at least in a case such as this, the court would owe a duty, not least to Parliament, not to grant a declaration without having reached and expressed some idea of how the incompatibility identified by the court could be remedied."
Basing themselves on this, they invite me to express my views as to how the conceded incompatibility may be remedied. Specifically, they invite me to "endorse" the amendments which they have drafted to remedy the discriminatory provisions in section 54. Furthermore, they invite me to "recommend that the Secretary of State be invited to exercise his power to remedy the incompatibility" pursuant to section 10(2) of the 1998 Act. This provides that:
"If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility."
"we believe that it is only rarely that the provisions of sections 72 and 73 [of the Mental Health Act 1983] constrain a mental health review tribunal to refuse an order of discharge where the continued detention of the patient infringes article 5. Indeed, in our experience where a tribunal refuses an application for a discharge it usually gives reasons for doing so that involve a positive finding that the patient is suffering from a mental disorder that warrants his or her continued detention. These may well be matters that the Secretary of State will wish to bear in mind when considering whether to take remedial action under section 10 of the Human Rights Act 1998."