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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C, Re (Surrogacy: Consent) (Rev1) [2023] EWCA Civ 16 (16 January 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/16.html Cite as: [2023] 1 FCR 755, [2023] EWCA Civ 16, [2023] 2 FLR 109 |
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Citation Number: [ 2023] EWCA Civ 16 | ||
CA-2022-001475 |
COURT
OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM THE FAMILY
COURT
AT PETERBOROUGH
Her Honour Judge Gordon-Saker
PE20P01804
Courts of JusticeStrand, London, WC2A 2LL |
||
16 January 2023 |
B e f o r e :
LADY JUSTICE THIRLWALL
and
LORD JUSTICE PETER JACKSON
____________________
Re C ( Surrogacy: Consent) |
____________________
Aidan Vine KC and Mavis Amonoo-Acquah (instructed by Brethertons LLP) for
the
Respondents
Hearing date : 3 November 2022
____________________
remotely
at 10.30am on
16
January
2023
by
circulation
representatives
by e-mail and by
release
to the National Archives.Lord Justice Peter Jackson:
Introduction
respect
of
C,
a boy then under a year old, in favour of the
Respondents
to this appeal. The Appellant is his surrogate and biological mother. On 14 July 2022, she was granted permission to appeal out of time by Theis J, who transferred the hearing of the appeal to the
Court
of Appeal under Rule 30.13 of the Family Procedure Rules 2010.
central
issue raised by the appeal is a simple one, but it is of great importance to the adults and to
C.
The Appellant argues that the
court
did not have the power to make the parental order as she had not given the free and unconditional
consent
that is
required
by section 54(6) of the Human Fertilisation and Embryology Act 2008 ('HFEA 2008'). In
consequence,
she submits that the order must be set aside. The
Respondents
contend
that the necessary
consent
was given, but if that is not so, they argue that the parental order should nevertheless be left in place.
Background
Respondents
and in May 2019 a
surrogacy
agreement was signed. In May/June 2019, an unsuccessful IVF attempt was made using a donor egg and the Second
Respondent's
sperm. In November 2019, artificial insemination took place using the Appellant's egg and the Second
Respondent's
sperm. The following month, the Appellant informed the
Respondents
that she was pregnant.
relationship
between the parties deteriorated. The Appellant describes becoming increasingly emotionally attached to the baby and feeling undervalued by the
Respondents.
The
Respondents
say that the Appellant kept them at arm's length during the pregnancy and was unwilling to share information.
C
was born and was handed over by the Appellant to the
Respondents
7 hours after birth. Following the transfer, the Appellant described feeling a sense of loss and she
received
postnatal
counselling
at the
Respondents'
expense.
Respondents
applied for a parental order. On 4 January 2021, the Appellant
returned
the form of acknowledgement to the
court
saying that she did not
consent
to the making of the parental order and opposed the application. At the same time, she wrote to the
Respondents
explaining her position.
received
brief legal advice, paid for by the
Respondents,
and some legal help to draft her
court
statement. In February 2021, the parties attended mediation and agreed to work on their
relationship
and
rebuild
trust.
Chapman,
the parental order
reporter
appointed by
CAFCASS,
filed her parental order
report.
She was unable to
recommend
that a parental order be made as the Appellant had not
consented
"due to wanting to keep her parental
responsibility
to allow her to have legal rights to spend time with
C."
came
before magistrates at hearing at which the parties were unrepresented. The
Respondents
invited the
court
to make a 'lives-with' order in their favour, which would give parental
responsibility
to the First
Respondent.
Although the Appellant supported this
course,
the magistrates declined to make the order on the basis that her "
consents
will need to be fully and
clearly
established". The parties agreed to attend mediation. The matter was
reallocated
to Her Honour Judge Gordon-Saker ('the judge') for a one-hour hearing on 11 August 2021.
consent
to a parental order. However, her position had
changed
because of her unexpected feelings for
C
and because she had anticipated being a significant person to him (though not a mother figure), but she now felt pushed out. She stated that she would
consent
to a parental order being made on two
conditions:
that a
child
arrangements order was made providing for monthly
contact
and that a prohibited steps order was made preventing the
Respondents
from moving without her written agreement.
came
before the judge. The
Respondents
were
represented
by
counsel.
The hearing took place via
CVP.
The Appellant appeared in person and Mrs
Chapman
was also present on the telephone. At the end of the hearing, the judge made a parental order and a
child
arrangements order,
consisting
of a 'lives with' order in favour of the
Respondents
("for the avoidance of doubt") and a
contact
order whereby
C
would spend one weekend day with the Appellant every six weeks and two additional weekend days each year to
celebrate
his birthday and
Christmas.
Respondents'
solicitors, stating that she had felt under pressure to
consent
to the parental order and had only provided
conditional
consent.
She did not at that stage seek to appeal.
contact
with
C
as ordered. However, scheduled
contact
on 2 January 2022 did not take place.
Respondents
issued an application seeking to discharge or vary the terms of the
child
arrangements order. On 13 February 2022, the scheduled
contact
did not take place; the Appellant attended the
Respondents'
home, but they would not permit
contact.
Respondents'
application and gave directions. The Appellant said that she intended to seek permission to appeal the parental order.
recommendation
of
CAFCASS,
the District Judge suspended direct
contact
while assessments were undertaken, and in the interim ordered indirect
contact.
On 28 July 2022, by
consent,
C
was joined as a party to the
Children
Act proceedings, which are ongoing, and a
Children's
Guardian was appointed.
respect
of the parental order, while
refusing
permission to appeal in
relation
to the suspension of
contact.
On 9 August 2022,
C's
Guardian stated that she did not seek to join the appeal unless directed by this
court.
Parental orders
Surrogacy
is legal in the UK, although
surrogacy
arrangements are not enforceable in law. At birth, the surrogate (and, if she is married or in a
civil
partnership, her
consenting
spouse or
civil
partner) will be the legal parent(s) of the
child.
Following the birth, a legal process the parental order process takes place to transfer legal parenthood from the surrogate to the intended parents ('IPs').
Regulations
2018, and Part 13 of the Family Procedure Rules 2010. When IP(s) submit a parental order application, the
court
will ask
CAFCASS
to appoint a parental order
reporter
to investigate the
circumstances
of the
case
and submit a parental order
report.
case
of a single applicant) the
court
may grant a parental order to a
couple
in
respect
of a
child
born through a
surrogacy
arrangement where such an order meets the
child's
welfare needs in accordance with section 1 Adoption and
Children
Act 2002, and the following
criteria
are satisfied:
(1) Thechild
has been
conceived
artificially and is genetically
related
to one of the IPs (subsection 1)
(2) The IPs are married, in acivil
partnership or living as partners in an enduring
relationship
(ss. 2).
(3) The IPs have applied within 6 months of thechild's
birth (ss. 3).
(4) Thechild
is living with the IPs and at least one of them is domiciled in the UK (ss.4).
(5) The IPs are over 18 years old (ss.5).
(6) The surrogate has been paid no more thanreasonable
expenses, unless authorised by the
court
(ss.8).
case
is
concerned,
provides that:
"(6) Thecourt
must be satisfied that both
(a) the woman whocarried
the
child,
and
(b) any other person who is a parent of thechild
but is not one of the applicants [ ],
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order."
require
the agreement of a person who
cannot
be found or is incapable of giving agreement, and that the agreement of the surrogate is ineffective if given less than six weeks after the
child's
birth.
requirements
for the making of a parental order. Rule 13.11 provides that:
(1) Unless thecourt
directs otherwise, the agreement of the other parent or the woman who
carried
the
child
to the making of a parental order may be given in the form
referred
to in Practice Direction 5A or a form to the like effect.
contains
the same general
content
as Form A104, the
consent
form for adoption, and is in these terms:
"I agree to a parental order being made inrespect
of ________________________ (my
child),
who is the
child
to whom the attached
certified
![]()
copy
of the entry in the
Register
of Live Births
relates.
in favour of *[______________________ (the named prospective parents)]
If a parental order is made inrespect
of my
child,
I understand that I will no longer legally be treated as the parent and that my
child
will become part of the family of the applicant(s).
I understand that I may withdraw my agreement at any time until thecourt
makes the parental order. If I do withdraw my agreement and want my
child
![]()
returned
to me, I understand that I must notify the
court
that I have
changed
my mind and I must, at all times, act through the
court
and not approach the applicants directly.
I have notreceived
any payment or
reward
from any person making arrangements for the parental order for my
child.
*[I have taken legal advice] / *[I have not taken legal advice, but I have been advised to do so], about giving agreement to a parental order being made inrespect
of my
child
and the effect on my parental rights. *(delete as appropriate)
I agree unconditionally and with full understanding of what is involved, to the making of a parental order inrespect
of _____________________ (my
child)
in favour of *[_________________________(the applicant(s)]
Signed.................................
on................. day of .............. 20
Witness statement
This form was signed by ...............................
On the........................................day of .......................20
before me (print full name)............................................
Signed..........................
Office of witness* .
Address of witness.
* In England and Wales this form must be witnessed by an officer of theChildren
and Family
Court
Advisory and Support Service (
Cafcass)
or, where the
child
is ordinarily
resident
in Wales, by a Welsh family proceedings officer."
relation
to personal status, being even more far-
reaching
than an adoption order. In AB v
CD
[2015] EWFC 12 at [70], Theis J described the difference between the two orders:
"(3) Adoption orderscreate
a presumption in law that the
child
is treated as if the biological
child
of the adopters. A parental order does not
require
that presumption to be made. Both orders are transformative, but a parental order proceeds on the assumption one of the applicants is the biological parent. That is one of the key
criteria
in s 54 HFEA. It doesn't
change
the
child's
lineage as an adoption order does; a parental order
creates
a legal parentage and
removes
the legal parentage of the birth family under the provisions of the HFEA 2008. Unlike adoption there is already a biological link with the applicants before the parental order application is made. Its purpose is to
create
legal parentage around an already
concluded
lineage
connection.
![]()
(4) From the point of view of thechild
the orders are different. An adopted
child
is seen to have had a family
created
for it, whereas in a
surrogacy
arrangement the
child's
![]()
conception
and birth has been
commissioned
by the parents, the
child
has a biological
connection
and the same identity as one of the parents. The latter arrangement is more
congruent
with a parental order than an adoption order."
"Let me say something about [the mother]'s position. Were she to have withheld herconsent
that would have been fatal to the application for by Section 54(6) it is a true veto and the
court,
unlike in adoption proceedings, has no dispensing power. That provision no doubt exists in
conformity
with the policy objective of the 2008 Act, that whilst gratuitous
surrogacy
is not unlawful, a
surrogacy
agreement is unenforceable."
This distinction is also followed through in section 54(7), which does not dispense with theconsent
of a mother who
cannot
be found or is incapable of giving agreement (as applies in an adoption
case),
but instead states that her agreement is not
required.
reasonable
expenses is not an absolute one, because such a payment
can
be authorised by the
court.
There is no equivalent power in
respect
of the
consent
provision in section 54(6).
consent
led to the
refusal
of an application for a parental order in
Re
Z (
Surrogacy
Agreement) (
Child
Arrangements Order) [2016] EWFC 34 and the adjournment of such an application in
Re
AB (
Surrogacy:
Consent)
[2016] EWHC 2643 (Fam), a
case
in which the
refusal
to give
consent
had nothing to do with
child
welfare. In
Re
H (A
Child)
[2017]
EWCA
Civ
1798, where a
surrogacy
arrangement had broken down, this
court
described the
requirement
of
consent
as "unique", so that a surrogate mother has "the right to
change
her mind" about it:
"11. The original intention of the parties was that once thechild
was born they would
cooperate
in obtaining a parental order in favour of A and B. This would have had the effect of transferring legal parenthood from one
couple
to the other. However,
surrogacy
arrangements are unenforceable (s.1A
Surrogacy
Arrangements Act 1985) and parental orders are unique as they
can
only be made if the legal parents unconditionally agree: s.54(6) of the 2008 Act
12. As originally framed, [counsel]'s
argument proposed that as a matter of law,
C
and D, had the right "to
change
their minds and keep H". It is undoubtedly
correct
that a surrogate mother has the right to
change
her mind, but [
counsel]
wisely withdrew from the submission that such a mother also had the right to have her own way about where the
child
should live. She was also forced to
concede
that, while the six-week "
cooling
off" period protects a mother in
relation
to the important issue of
consent
to a parental order, it tells one nothing about what the best welfare arrangements for the
child
will be after birth "
contrast,
there have been two occasions on which the
court
has made a parental order in
circumstances
where the strict wording of section 54 was not satisfied. In A v P (
Surrogacy:
Parental Order: Death of Applicant) [2011] EWHC 1738 (Fam), a
case
heard at a time when a parental order
could
not be made in favour of a single applicant, the
commissioning
father had died between the making of the application and the final hearing. Theis J made a parental order in favour of both
commissioning
parents, interpreting section 54(4) and (5) in a manner that gave effect to the purpose of the legislation and to the rights under the European
Convention
on Human Rights and Fundamental Freedoms 1950 ('the
Convention').
In
Re
X (A
Child)
(
Surrogacy:
Time Limit) [2014] EWHC 3135 (Fam), Sir James Munby P determined that the
court
was not prevented from making a parental order merely because the application was made after the expiration of the six-month period specified in section 54(3).
surrogacy
legislation in the United Kingdom, starting with the Warnock
Report
in 1984 (
Cmnd.
9314) and proceeding via the
Surrogacy
Arrangements Act 1985 and the Human Fertilisation and Embryology Act 1990 to the present HFEA 2008. At the Third
Reading
in the Upper House of the Bill which became the 1990 Act, an amendment was proposed that would have allowed a surrogate mother to give pre-birth
consent
to not being treated as the mother of the
child.
That amendment was
rejected
by the Lord
Chancellor,
Lord Mackay of
Clashfern,
and the 1990 Act inserted Section 1A into the 1985 Act, which provides that:
"Nosurrogacy
arrangement is enforceable by or against any of the persons making it."
Section 27 of the 1990 Act (now section 33 of the 2008 Act) provided that:
"The woman who iscarrying
or has
carried
a
child
as a
result
of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the
child."
current
review
of
surrogacy
law being undertaken by the Law
Commission.
In its
consultation
paper, Building families through
surrogacy:
a new law, at 11.22-11.58 it discusses the option of giving the
court
the power to dispense with the surrogate's
consent
on welfare grounds in
circumstances
where the
child
lives with the intended parents. The
current
legislation, however,
requires
the
court
to be satisfied about
consent
and about welfare: it does not permit them to be mixed up with each other.
The hearing before the judge in this
case
recording.
It is necessary to set out some parts of the transcript to fairly understand the
course
of the hearing, with editing to maintain anonymity.
Respondents'
counsel.
She explained that the parties had agreed the terms of a
child
arrangements order, and although the
court
could
not make such an order on its own initiative in the parental order proceedings, it
could
grant permission for an application to be made under the
Children
Act, and then make an order. However, she noted the
requirements
of section 54(6) and informed the judge that Ms A would be saying that her
consent
to a parental order was
conditional
on the making of a
child
arrangements order.
Counsel
nonetheless invited the
court
to
consider
making a parental order on the basis of Ms A giving her
consent,
with a
child
arrangements order being made "as a separate matter".
consideration
of the
Children
Act provisions and the proposed
contact
arrangements, the judge then addressed the Appellant:
"THE JUDGE: Ms A, Ms Maxwell has outlined the position to me and, as I think you probably know, there are a number of matters in the statute, section 54, that I have to be satisfied about and one of those Ms Maxwell has rightlyreminded
me is that you, freely and with full understanding of what is involved, agree unconditionally to the making of the order. If you only agree to the making of the order if there is a
child
arrangements' order, then that would obviously not be freely and unconditionally given
consent.
The other matters in the statute are all dealt with amongst the papers in particular and also in MrsChapman's
![]()
report,
so I do not think any of those
cause
me a difficulty in making the order. The only one that does is the
consent
because, although I understand there is an agreement that there will be
contact,
and I will be asked to make a
child
arrangements order, I
cannot
do that as a
condition
of making the parental order. I
can
only make the parental order if you freely
consent
and without
conditions,
so, first of all, does that make sense to you, what I have just said? I know sometimes for a non-lawyer it gets a bit
convoluted.
You are nodding so that is helpful, thank you.
Then, I suppose, first of all, is there anything you want to ask me and then is there anything you want to say inresponse,
as it were?
replied
in these terms:
MS A: Thank you, your Honour, there is nothing I want to ask you but in terms of thecondition,
the unconditional
consent,
I think I would be lying if I said that I unconditionally
consent
to it because it is a-- I would like to see
C
and so I am making the parental-- the
consent
on that I see
C.
If I-- I don't unconditionally give it because I am fearful that I won't have time to spend time with
C
and so that's why I
can't
quite unconditionally
consent.
![]()
However, I do believe it is in all of our interests to move on with our lives and to kind of startrebuilding
our
relationship
again and I do feel that having a
child
arrangements order is best for all of us along with a parental order being made, but I
couldn't
lie and say that I do give my
consent
unconditionally. If that helps, your Honour."
responded
at some length, starting in this way:
"THE JUDGE: Well, it is veryclear
and I fully understand what you are saying. It does not help me-- and this is not a
criticism
of you, it does not help me get over the legal obstacle. Let me look at it in a different way and, please, let me be very
clear,
I am not trying to put any pressure on you at all because that would be wrong, because the whole point is that I make an order only if everybody
consents
I
cannot
make a
child
arrangements order in this particular proceedings probably for very good
reason,
because if it was part of the issues, then it probably would not be freely
consented
to
She then explained that she would becontent
to hear an oral application for a
child
arrangements order, saying:
"So in terms of trying toreassure
you, I am told that application would not be opposed. You
could
make it orally once I have
concluded
the making of a parental order but I
cannot
make the parental order unless you do
consent
to it -- and if you do not
consent,
and again I am not saying this in any way to put pressure on you-- sometimes it may sound a bit like that but of
course
if you do not
consent,
you will all be in this limbo moving forward until somebody attempts to make a different application which obviously the applicants may do but I
cannot
adjudicate on that in advance.
So we are in a slightly difficult position I think youconsent
to the
concept
that the applicants are, as it were,
C's
parents and that is
recognised
in law. I think the issue is one of
concern
about the way forward for
contact,
so-- but unless I have you unconditionally
consenting
I think we
cannot
move on from this limbo, so I am not-- try to think about what I have just said for a minute and while you are thinking about that, I am going to go to Mrs
Chapman
to see if she would like to add or say anything because I think apart from this difficulty she feels that the
criteria
are met but I just want to
check
with her.
Chapman,
who
confirmed
that the Appellant was happy with the parenting
C
was
receiving
but that she did not want to
consent
because she wanted a legal right to spend time with
C
and was scared of having no
contact.
returned
to the Appellant for these important exchanges:
THE JUDGE: so, Ms A, we are in the position that as a matter of law and alsoconsidering
![]()
C's
welfare, I think all of us agree that a parental order is the right thing for him. Everybody agrees that it is right for him to see you and to know you but it is just
coming
back to the original question, so having heard what has been said, what is your thinking now?
MS A: Then the only way forward is for me to give my unconditionalconsent,
your Honour.
THE JUDGE: I am sorry?
MS A: I will provide my unconditionalconsent.
![]()
THE JUDGE: And you are quite sure about that?
MS A: I don't see that there is any other way for us to move forward without it.
THE JUDGE: Well, I think that was the right decision and I think that is extremely helpful for everybody, for all of you and perhaps most importantly ofcourse
for
C.
I am very grateful to you and I expect the applicants are as well. So what I will do is I will make the parental order Then in terms of a
child
arrangements' order, now that the parental order has been made, everybody agrees that it is right for Ms A to have
contact
and under the
Children
Act you
can
make an application or I
can
treat an oral application as having been made and given the amount of information I have about all of you, I do not need you to go through the normal process of getting enquiries from
Cafcass
because obviously I already have that information from Mrs
Chapman,
so I would be
content
to make a
child
arrangements' order and Ms Maxwell has said that the agreed way forward is the every six weeks-- I appreciate there will be a little bit more detail to this but every six weeks for a day, holidays and
Christmas
and-- so that is her position. So from your side, Ms A, is that agreed by you as the way forward?
MS A: It is, yes.
THE JUDGE: In thatcase,
I had better go back to Mrs
Chapman
in
case
from a welfare point of view she has any
concerns.
Mrs
Chapman,
from a welfare point of view for
C
would you be happy to endorse that order?
MRSCHAPMAN:
Yes, I am happy to endorse that order.
THE JUDGE: So in thatcase
that order will then follow, so we have a parental order and there will then be a
child
arrangements' order. I think then I hope very much that all of you
can
![]()
relax
a little after what has been quite a difficult time and move forward.
C
is going to be one soon and I think it would be very nice to move forward knowing all the decisions have been made, so if I go back to Ms Maxwell; Ms Maxwell, is there anything else you want to add?
MS MAXWELL: Your Honour, no, thank you very much.
THE JUDGE: Okay. Ms A, is there anything else you want to add?
MS A: No, thank you.
THE JUDGE: Well, thank you very much, and, MrsChapman,
is there anything else you want to add?
MRSCHAPMAN:
No, I have got nothing more to add, thank you.
THE JUDGE: Well, thank you very much for your help and my thanks to everybody for their help because I know itcan
be quite stressful in a situation like this, so I am very grateful to everybody for having achieved the right way forward for
C
![]()
Okay, thank you all very much for attending. I know it has been difficult for everybody and Ican
see for Ms A in particular, so I will thank you all for attending and I will let you all go now. Thank you very much everybody.
MS A: Thank you, bye.
THE JUDGE: Bye."
The appeal
1) TheCourt
was wrong to make a parental order when it was
clear
that the Appellant's
consent
was being given
conditional
on the making of a
child
arrangements order and therefore was not given 'unconditionally' as
required
by s.54(6) HFEA 2008.
2) TheCourt
was wrong to make a parental order when the
consent
provided by the Appellant was not provided 'freely' as
required
by s.54(6).
representation
by solicitors and
counsel.
We
recognise
their
commitment
and are grateful for the quality of their presentations.
court
should not have made a parental order. To the extent that the Appellant said she was
consenting,
she was not doing so freely and unconditionally. There
can
be no
complaint
about the
content
of the hearing up to the point where she stated her position but at that point the hearing should have ended with the application for a parental order either being dismissed or adjourned. By going on to address the Appellant at such length, the judge unintentionally placed pressure upon her, in particular by
referring
to her stance as an obstacle that
created
difficulty and to the parties as being in limbo with no other way forward. In
referring
to the promise of a
child
arrangements order she attempted to give
reassurance
that she was not in a position to give. A degree of judicial encouragement is acceptable in many
cases,
but it was not appropriate here, particularly as the Appellant was alone and unrepresented and the hearing was a
remote
one. The judge should have
recognised
that the Appellant had an absolute right to withhold her
consent
for any
reason
whatever and that it
could
not be dispensed with on the basis of welfare factors. At the end of the hearing, the Appellant was
crying.
surrogacy
legislation. She argued that the
requirement
for free and unconditional
consent
is fundamental. Parliament
could
have included a provision for
contact
in
connection
with
surrogacy
in the same way as it has done in
relation
to adoption by section 26 Adoption and
Children
Act 2002, but that is not to be found. It
could
have said that
consent
that was
conditional
on
contact
being provided would be sufficient, but it did not do so.
client
would agree to an order that
C
lives with the
Respondents.
She will not
consent
to a parental order and there would therefore be no purpose in adjourning that application.
Respondents,
Mr Vine KC, leading Ms Amonoo-Acquah, submitted that the judge was entitled to
consider
that the Appellant had given free and unconditional
consent
and to make the parental order. He accepted that
consent
is a fundamental part of the legislation and that the starting point for the hearing was that the Appellant was not
consenting,
as seen in her statement and the parental order
report.
However, he argued that if the Appellant wanted both orders to run alongside each other, that would satisfy the
requirement
for
consent.
The making of the parental order and the
child
arrangements order
could
be made in sequence in what he described as "sealed deliberations".
contact,
but suggests that permission to apply would
readily
be granted under section 10 of the
Children
Act 1989. He
characterised
the judge's presentation of the issues to the Appellant as neutral. He pointed to the fact that the Appellant twice said that she unconditionally
consented:
the judge was entitled to evaluate the quality of what she had seen and heard and to accept it as sufficient.
concern
that
C's
Children's
Guardian, appointed in the ongoing
Children
Act proceedings, had
chosen
to play no part on the appeal. The welfare
consequences
for
C
of undoing the parental order are profound. The decision affects
C's
very identity but he has been left with no voice and no protection for his
Convention
rights. For that
reason
Mr Vine made an application in the middle of the hearing for the appeal to be adjourned for
CAFCASS
to take part. We declined to take that
course
on the basis that all the
relevant
arguments were before us.
consent
provisions in HFEA 2008 are incompatible with the
Convention,
but he
referred
to the obligation under section 3(1) of the Human Rights Act 1998 that the
court
must, so far as it is possible to do so,
read
and give effect to primary and secondary legislation in a way which is
compatible
with
Convention
rights, and to section 6(1) of that Act which makes it unlawful for public authorities, including a
court,
to act in a way that is incompatible with a
Convention
right. He asserted that
C
and the
Respondents
and their wider families have a mutual right to
respect
for their family life under Article 8 and that this
court
is under a positive obligation to ensure effective protection for those rights, which fall to be balanced with the Appellant's own rights.
C
has lived with the
Respondents
all his life and has been subject to a parental order for over a year. If the order is set aside, the First
Respondent
would hold parental
responsibility
for
C
under the 'lives with' order but would have no legal
relationship
with him. A fair balance between the
competing
rights
can,
Mr Vine argues, no longer be struck if the Appellant's
consent
represents
a permanent barrier to the making of a fresh parental order. He
contends
that a bespoke interpretative solution is therefore
required
in this particular
case
in order to avoid a
Convention
violation.
circumstances
an appeal
court
will
review
a first instance judge's Article 8 evaluation and the necessity/proportionality of the original decision but will not make its own evaluation: In
re
B (A
Child)
(
Care
Proceedings: Threshold
Criteria)
[2013] UKSC 33, [2013] 1 WLR 1911 at paras. 36, 83-90 and 136; In the matter of H-W (
Children)
(No 2) [2022] UKSC 17, [2022] 2 FLR 533 at para. 48. However, that approach is not apt in a
case
where the appeal has been brought so late. This
court
should
carry
out its own assessment as at the present date, the
result
of which should be that the parental order is not set aside.
result,
Mr Vine asks us not to set aside the parental order but to uphold it on a different basis. We should, he says,
read
sub-sections 54(6) and (7) as if they ended with the words "such
consent
not to be unreasonably withheld", and exercise a dispensing power ourselves. Questioned, Mr Vine
revised
this submission to say that we should
read
words into subsection 54(7) that would give the
court
the power to dispense with
consent
because S's welfare
requires
it. This
reading
of the statute is justified by the fundamental importance of the matter for
C.
Mr Vine
relies
by analogy on
Re
X (above) at paras. 54-55
concerning
the "transcendental importance" of a parental order in
comparison
to the justification for the six-month time limit for making applications. He also
refers
to Mennesson v. France Application no. 65192/11, 26 September 2014, as showing that there is a limit to the State's margin of appreciation when there is uncertainty about a
child's
legal status. He accepts that parental status
can
be
created
through adoption but argues that a parental order is the only bespoke order for a
surrogacy.
He supplemented these submissions with
references
to Ghaidan v Godin-Mendoza [2004] UKHL 30, arguing that
reading
the statute in this way would not be inconsistent with the scheme of the legislation or with its essential principles but would instead 'go with the grain of the legislation' (see Lord Rodger at paras. 121-122).
Responding,
Ms Bazley submits that there is no obstacle,
created
by Article 8 or otherwise, to this
court
discharging the parental order. It would not interfere with the rights of the
Respondents
and the
child
as the Second
Respondent
would
remain
the
child's
legal father (he is named on the
child's
original birth
certificate)
while the First
Respondent
would
retain
parental
responsibility
via the 'lives with' order. The Strasbourg
court
has held that legal
connections
amounting to less than full parenthood are sufficient in Article 8 terms for non-biological parents, and nothing would
change
for
C
in terms of practical, day-to-day arrangements. Ms Bazley
cites
the
recent
decision in AM v Norway Application no. 30254/18, 24 June 2022, at paras.131-134 as showing the margin of appreciation enjoyed by States in
circumstances
of this kind. She argues that there are alternatives to a parental order that will properly
reflect
C's
actual and legal
relationships,
in the manner noted in the
concurring
opinion of Judge O'Leary in that
case
at para.
16.
In addition, the Appellant's lack of free and unconditional
consent
is a weighty and, in fact, determinative factor in the balancing exercise, as is the fact that there is no way for the Appellant (who is
C's
biological mother) to be his legal parent other than by setting aside the parental order. Further, even if setting aside the parental order would interfere with the Article 8 rights of the
Respondents
and the
child,
it would be justified as it (i) is in accordance with law (section 54(6) HFEA), (ii) pursues a legitimate aim (to protect surrogate mothers and women more generally), and (iii) is necessary in a democratic society (and
clearly
falls within the wide margin of appreciation left to States in this area).
can
be
read
so as to include a power to dispense with
consent
on welfare grounds when that would be directly
contrary
to the scheme of the legislation. Other elements of section 54 have previously been
construed
in a way that is
compatible
with the
Convention
but they have never taken such an approach with section 54(6). That is because the provision is a
central
and fundamental
requirement
for the making of a parental order and interpreting it in any other way would be impermissible.
Analysis and Determination
case.
The first is whether, on a straight
reading
of s.54(6), the Appellant gave free and unconditional
consent
to the making of the parental order. The second is whether, if that is not the
case,
the
Convention
requires
the
court
to assume and exercise a power to dispense with
consent,
and thereby to preserve the parental order. The last question is what order this
court
should make in
respect
of the underlying application for a parental order if the answer to each of the above questions is 'No'.
requirement
that a person has "freely, and with full understanding of what is involved, agreed unconditionally to the making of the order" means exactly what it says. Although it may be forensically
convenient
to separate out the individual elements, what is
required
is a
consent
that is free, informed and unconditional. If that is achieved, it is immaterial whether the
consent
is given gladly or
reluctantly.
consent,
it will be a matter for the
court
to judge, giving
consideration
to all the
circumstances.
One
relevant
factor is likely to be the means by which
consent
has been expressed. Because of the profound
consequences
of the underlying
choice,
it is normal for there to be a degree of formality. This is
reflected
in the preference in FPR 13(11) for
consent
to be in writing, using Form 101A and with the parental order
reporter
as witness. Even then,
consent
can
be withdrawn at any stage before the order is made. This degree of formality is not mandatory but its absence should put the
court
on its guard to ensure that the proffered
consent
is valid. In the present
case,
the disputed
consent
was given orally in the face of the
court
and via
CVP.
In that unusual situation, a sharp eye had to be kept on the possibility that the
court
process might of itself be exerting pressure to the extent that any stated
consent
was devalued.
correctly
identified the statutory test:
" there are a number of matters in the statute, section 54, that I have to be satisfied about and one of those Ms Maxwell has rightlyreminded
me is that you, freely and with full understanding of what is involved, agree unconditionally to the making of the order. If you only agree to the making of the order if there is a
child
arrangements' order, then that would obviously not be freely and unconditionally given
consent."
She was also alive to the importance ofconsent
being freely given:
" please, let me be veryclear,
I am not trying to put any pressure on you at all because that would be wrong, because the whole point is that I make an order only if everybody
consents
"
She equallyrecognised
the danger of mixing up the issues:
"Icannot
make a
child
arrangements order in this particular proceedings probably for very good
reason,
because if it was part of the issues, then it probably would not be freely
consented
to "
report:
"I don't unconditionally give it because I am fearful that I won't have time to spend time withC
and so that's why I
can't
quite unconditionally
consent
I do feel that having a
child
arrangements order is best for all of us along with a parental order being made, but I
couldn't
lie and say that I do give my
consent
unconditionally."
Faced with that statement, which she herself described as "veryclear",
the judge should have held to the line that it was inappropriate to pursue the matter further, at least during that hearing. She might have adjourned to give the parties a further opportunity to
consider
their positions, but it was not right to expect the Appellant to do that during the
course
of the hearing: "try to think about what I have just said for a minute". Even if it was
reasonable
to have explored the matter further, the judge should
certainly
have paused at the point where the Appellant appeared willing to
relent,
so that her
consent
![]()
could
be taken in writing in a non-pressured and witnessed setting. Instead, and motivated by an understandable desire to help the parties to achieve what the Appellant herself had described as the "best for all of us", the judge immediately made the order. This was an attempt to square a
circle
that
could
not be squared in that way.
conducted
with
complete
courtesy,
there were a number of other objective features to put the judge on her guard. In the first place this was a
remote
hearing in a sensitive
case,
with the Appellant being alone and unrepresented. The inevitable stress on any litigant was then inadvertently exacerbated by the way in which the Appellant found herself out on a limb, with her position on
consent
being
represented
as the only obstacle to an overall solution: "if you do not
consent,
you will all be in this limbo". Also, an unrepresented litigant who is addressed by a judge at some length may be influenced by feelings of deference. Again, I
recall
that the judge was motivated by her assessment of what was in the best interests of
C,
the
Respondents
and indeed the Applicant herself. That welfare assessment was very probably sound but it had nothing to do with the question of
consent.
Had the
resulting
arrangements been satisfactory to all
concerned,
the problems with
consent
would no doubt have faded from memory, but the fact that the outcome has been so disappointing so far tends to show that the order was not built on solid foundations.
conceive
of a parental order and a
child
arrangements order
coexisting.
None of the
reported
cases
has had that outcome, but they may not be
representative
of all problematic
surrogacies.
Some unproblematic
surrogacies
do not lead to parental orders at all, and
contact
with a surrogate will sometimes take place without any thought of a
child
arrangements order, even where a parental order has been made. However, in
cases
where there is less trust, there must still be a narrow path available to parties who genuinely agree that dual orders are the solution. While the statute does not envisage such orders, it does not expressly exclude them and to that extent I would accept Mr Vine's submission that it might be possible for this outcome to be achieved. What the statute does, however, unequivocally exclude, in order to protect the surrogate, is twin orders in
circumstances
where one order is the price for the other. That is what occurred in this
case.
reasons,
the answer to the first question is that the Appellant's
consent
was not merely
reluctant
but neither free nor unconditional. It was given in
reliance
on the promise of a
child
arrangements order and the Appellant's statement that she gave it unconditionally did not
reflect
the
reality.
Furthermore, the eventual expression of
consent
was given under unwitting but palpable pressure. The parental order should not have been made.
Coming
to the second question, I unhesitatingly
reject
the submission that section 54(6)
can
be
read
in such a way as to
confer
a dispensing power upon the
court.
The right of a surrogate not to provide
consent
is a pillar of the legislation and the assumption by the
court
of such a power would go far beyond permissible judicial interpretation of the kind found in A v P and in
Re
X. It is beyond doubt that the proposed setting aside of the parental order would
clearly
fall within the scope of the private and family life aspects of Article 8: Mennesson at paras. 87 and 96. However, the rights of the
Respondents
and of
C
are not violated by the setting aside of the order for want of
consent
on the part of the Appellant. The Strasbourg
court
has
recognised
a
considerable
margin of appreciation in this area and the potential availability of adoption to secure
C's
legal
relationships
is also
relevant,
even if that route would be sub-optimal: Valdis Fjφlnisdσttir v Iceland, Application no.71552/17, 18 August 2021. I would take this view even if this
court
were to make its own Article 8 assessment at the present date. I therefore
conclude
that the
Convention
does not
require
the parental order, made without valid
consent,
to be left in place.
respect
of the underlying parental order application. The
choice
is between dismissing it or
remitting
it. I would look favourably on
remitting
if a parental order
could
possibly
result
from the parties being given another opportunity to take stock. I have noted that the judge might have adjourned the hearing for that purpose, and Ms Bazley has accepted that this option was open to her. But that was in the middle of 2021 and we are now in early
2023.
In the meantime,
relationships
between the parties have deteriorated further, as the ongoing
Children
Act proceedings show. Even with the benefit of their
current
representation,
the parties have been unable to devise a solution of their own. The Appellant's position is that she will not
consent
to a parental order.
circumstances,
I am driven to
conclude
that to
remit
the parental order application would perpetuate the process that led to the making of the original order. I would therefore allow the appeal and dismiss the application for a parental order. That
C
should be brought up by the
Respondents
and have
contact
with the Appellant was intended by all. It
remains
agreed by all that
C
will
continue
to be brought up by the
Respondents,
but the appropriate legal mechanism for that, and the question of
contact with the Appellant are matters that are beyond the scope of this appeal.
Lady Justice Thirlwall:
Lady Justice King: