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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> X v Z (Parental Order Adult) [2022] EWFC 26 (05 April 2022) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2022/26.html Cite as: [2023] 1 WLR 1493, [2022] 2 FCR 845, [2023] WLR 1493, [2022] EWFC 26, [2023] 1 FLR 81 |
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version
of the judgment to be published. The anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. 2022] EWFC 26 | ||
Sitting at the Royal Courts of Justice
Strand, London, WC2A 2LL |
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2022 |
B e f o r e :
____________________
Mrs X | 1st Applicant |
|
| - and – Mr X | 2nd Applicant |
|
| -and- Mrs Z | 1st Respondent |
|
| - and – Mr Z | 2nd Respondent |
|
| -and – Y |
3rd Respondent |
____________________
Ms Sharon Segal (instructed by Goodman Ray) for the 3rd Respondent
The 1st and 2nd Respondents did not attend
Hearing date: 22nd March
2022
Judgment: 5th April
2022
____________________
VERSION
OF JUDGMENT: 5TH APRIL
2022
HTML
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
Mrs Justice Theis DBE :
Introduction
parental
order
made by Mr and Mrs
X
in relation to their son, Y who was born in 1998 following a surrogacy arrangement in the United States. Y is a respondent to the application, as is the surrogate, Mrs
Z,
who carried Y, and her husband, Mr
Z.
parental
order
for a person who is now an
adult.
As a consequence it will be necessary to consider the provisions of the Human Fertilisation and Embryology Act 2008 ('HFEA 2008'), in particular whether the criteria in s54 are met.
X
being Y's legal
parents.
That reflected the legal position in the United States, where the surrogacy arrangement had taken place and
orders
made there confirmed that position. Everyone had worked on the basis and conducted their lives on the understanding the legal position there was reflected here.
X
and Y when they were contacted by the surrogate, Mrs
Z
in September 2021, she first alerted them to the need for a
parental
order
here. She had recently become aware of this due to another child she had carried following a surrogacy arrangement being in the same position.
order
should be made. The court is extremely grateful for both the solicitors and counsel who have advised the parties and those representing Y on a pro bono basis. They are each experts in this area and their excellent written and oral submissions outline a route in this case for the
order
everyone seeks to be made.
parental
order
will recognise what they had all thought was the position for so many years. It is clearly the right
order
to make, the consequences of not making it would be significant and lifelong and not reflect the reality for everyone on the ground. Mr and Mrs
X
and Y have each eloquently and powerfully described in their statements the need for this
order
to be made in their circumstances. They also recognise the wider issues this case raises, and the need for the message to go out to others who may be in a similar situation to urgently consider their position and any consequences that may flow from that.
Relevant Background
X
have remained in contact with the surrogate and her husband. That continuing contact has meant the evidence necessary to fulfil the requirements in s54 HFEA 2008 has been readily available, despite the passage of time.
X
are married. Due to a congenital anomaly, Mrs
X
always knew that they would need to consider surrogacy to have a family of their own. Mrs
X
outlines in her statement the concerns they had about the uncertain framework for surrogacy in this jurisdiction, as compared to what they considered to be the transparent and well supported process they encountered in the United States, which was underpinned by a legal framework.
Z.
X
was transferred to Mrs
Z
and the pregnancy confirmed.
X
describes that throughout the pregnancy she and her husband's relationship with Mr and Mrs
Z
was close. When they
visited
the United States during the pregnancy they all spent time together 'enjoying each other's company…we really got on with each other'. She said they talked at least once a week. Mrs
X
described the psychological support provided to Mrs
Z
by the agency as 'amazing'.
X's
attorney there. In 1998 the Superior Court of California made an
order
declaring Mr and Mrs
X
as Y's joint legal
parents.
As Mrs
X
sets out in her statement 'During that process, we were never informed about the
parental
order
process nor was it suggested that we needed to take separate legal advice in the UK'.
X
have been entirely open about Y's circumstances. They have a picture of Mrs
Z
pregnant with him at their home and as soon as Y was old enough he was told that he was carried by her. As they describe in their statements 'It has always been a
very
natural part of his life and always talked about openly with friends and family'.
Z
and their family, with trips either to the United States or here and more regular contact through telephone or social media. As Mrs
X
states Mrs and Mrs
Z'have
seen Y grow and develop through yearly photos, texts and cards. We have a caring friendship…'.
X
was contacted by Mrs
Z
and informed that Mrs
Z
was involved in
parental
order
proceedings here with another British couple she had been a surrogate for and was informing her, as she knew Mr and Mrs
X
had not been involved in similar proceedings here.
X
made her own enquiries and sought legal advice about their situation, as she says 'we were completely shocked. We had absolutely no idea about the
parental
order
or, that we were not treated as Y's legal
parents
under this jurisdiction. From our perspective we had been through a US legal process, are named on Y's US birth certificate and are his biological
parents.
We have never encountered any legal difficulties in terms of
parenting
Y since he was born.' She continues 'Now that we know the legal position, we are extremely keen to do all we can to ensure that our legal relationship with Y is resolved and secured for the rest of his life. We want to make sure that he does not encounter any legal obstacles later in his life because of the current situation and we want Mr and Mrs
Z
to have closure so we can all get on with our lives in a legal and respectable manner…we wish to do all we can to promptly resolve the legalities.'
2022.
Those directions included giving notice of this application to the Secretary of State for Health and Social Care ('SSHSC') and Cafcass. The SSHSC have responded stating they do not wish to intervene, or make any representations. Cafcass have confirmed in writing that their remit is limited to representing children.
Z
have completed the C52 acknowledgment of service, confirming their consent to the court making a
parental
order.
They have been informed of the hearing.
Legal Framework
parental
order
applications is set out in the HFEA 2008. It provides that the person who gives birth to the child remains the legal mother (s 33 HFEA 2008) and by
virtue
of s35 HFEA Mr
Z,
as her consenting husband, is the legal father.
parental
order
can be summarised as follows:
(1) The biological connection with at least one of the applicants and the child, and the child was not carried by one of the applicants (s54(1)(a) and (b)).
(2) Whether the applicants at the time of the application and at the time when the court is considering making an
order
are married, civil partners or in an enduring family relationship (s54 (2)).
(3) The application should be made within six months of the child's birth (s54(3)).
(4) At the time of the application and at the time when the court is considering making an
order
is the child's home with the applicants (s54(4)(a)).
(5) At the time of the application and at the time when the court is considering making an
order
at least one of the applicants is domiciled in this jurisdiction (s54 (4)(b)).
(6) Whether the applicants are over 18 years (s54 (5)).
(7) Whether the surrogate mother has given her consent, freely and with full understanding, to the making of a
parental
order
at least 6 weeks after the birth of the child (s54 (6) and (7)). If such written agreement is executed outside the United Kingdom rule 13.11(4) Family Procedure Rules 2010 (FPR 2010) provides details of who can witness such agreements, including a notary public.
(8) Whether any payments have been made, other than for expenses reasonably incurred and, if so, do they require to be authorised by the court (s54 (8)).
order
would meet the lifelong welfare needs of the child, having regard to s 1 Adoption and Children Act 2002 (ACA 2002).
X
[2015] 1 FLR 349. That case paved the legal route for courts to consider applications made outside the six month time period provided for in s54(3). The then President, Sir James Munby, concluded that the court could consider such applications as a matter of statutory interpretation as he stated [55] 'Given the subject matter, given the consequences for the commissioning
parents,
never mind those for the child, to construe s54(3) as barring forever an application made just one day late is not, in my judgment, sensible.' In that decision it was acknowledged that even if that analysis was wrong the same result was entirely justified on a reading down of the statute to protect the Article 8 rights to family life and identity that were clearly engaged ([58]).
X
in 2014 a number of reported decisions have involved
parental
orders
for older children, the most recent concerning a child who is 13 years (see A
v
C [2017] 2 FLR 101).
X
made clear that in considering whether the application made outside the 6 month time limit should proceed would depend on the facts of each case, in particular any reasons for the delay in making the application.
Submissions
adult,
the delay in making the application outside the six month limit and whether it could be said Y had his home with Mr and Mrs
X
at the time of the application and when the court is considering making a
parental
order.
order.
adult,
Ms Fottrell and Ms Segal jointly submit that although this case is in yet unchartered waters, there is nothing in the HFEA 2008 that prevents a
parental
order
being made in favour of someone who is no longer a child. The scheme of the HFEA 2008 and the framework in Part 13 of the Family Procedure Rules 2010 envisages the application relating to a child, coupled with the fact that the court is directed, if the s54 criteria are established, to consider s1 ACA 2002.
adult.
This compares with adoption where the ACA 2002 expressly prevents an adoption application being made by someone over the age of 18 years or an adoption
order
being made after their 19th birthday (s47 and 49 ACA 2002). Section 9 (7) Children Act 1989 ('CA 1989') provides a limit in relation to
orders
under s8 CA 1989 where it states that s 8
orders
in relation to children who have reached the age of 16 years should not be made, save in exceptional circumstances. Also, they note s55A Family Law Act 1986, which provides for declarations of
parentage,
does not include any age limit, so declarations can be made in favour of
adults
of any age.
parental
order
could not be made. They rely on what Sir James Munby set out in Re
X,
albeit in the context of the 6 month time limit, at [16] and [17] when he observed that there was no obvious policy underpinning the time limit in the HFEA 1990, which was replicated in HFEA 2008.
adults
and children. As Ms Fottrell submits, there is nothing in the analysis in Re
X
that suggests that an
adult
child is any less worthy of legal protection and recognition than a child. To suggest otherwise, she submits, would be arbitrary.
X,
in particular at paragraphs [54], [58] and [64], where he emphasised the importance of identity rights and the consequences if a
parental
order
cannot be made. They submit that decision, when read with the earlier decision of this court in A
v
P [2012] 2 FLR 145, enables the court, if a narrow and literal reading of the provisions of s54 prevent the Court from making an
order
which offends Convention rights, the court should then engage in a constructive and purposive analysis of the legislation being considered, protecting the Convention rights engaged.
X
at [58] 'The two key authorities here are the decision of Theis J in A and Another
v
P and Others, and the later decision of the Supreme Court in Pomiechowski
v
District Court of Legnica, Poland and Another. Although, as I have pointed out, Theis J founded her analysis on Art 8, whilst the Supreme Court's analysis was based on Art 6, the reasoning in both cases is fundamentally the same: the statute must be 'read down' in such a way as to ensure that the 'essence' of the protected right is not impaired and that what is being protected are rights that are 'practical and effective' and not 'theoretical and illusory'…..Theis J focused on that aspect of Art 8 of the European Convention which protects 'family life', but Art 8 also protects 'private life', and 'identity', on which she appropriately laid stress, is an important aspect of 'private life'. So, any application for a
parental
order
implicates both the child's right to 'family life' and also the child's right to 'private life'.'
v
France No 65192/11 which involved children born abroad following a surrogacy arrangement and on return to France was not able to secure a French birth certificate. In that decision the Court observed [97] '…although aware that the children have been identified in another country as the children of the first and second applicants, France nonetheless denies them that status under French law. The Court considers that a contradiction of that nature undermines the children's identity within French society'. At [98] 'The Court also observes that the fact that the third and fourth applicants are not identified under French law as the children of the first and second applicants has consequences for their inheritance rights…this is also a component of their identity in relation to their
parentage
on which children born as a result of a surrogacy agreement performed abroad are deprived.' The Court found France in breach of its obligations under Article 8.
Article 8:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or in the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others'.
Article 14 provides that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
orders
were made in the United States to establish their legal relationship and they have operated as a close and supportive family unit since Y's birth. There are serious legal consequences for them if the
order
is not made, not least that Mr and Mrs
Z
would remain Y's legal
parents
in this jurisdiction 'for all purposes' (per s 48(1) HFEA 2008) and his inheritance rights would be impacted.
order
is not made Y is not able to have Mr and Mrs
X
recognised as his legal
parents
by
virtue
of the circumstances of his birth through surrogacy.
v
Belgium ECHR 13 June 1979)
parental
order
provides, and there is no other
order
that would secure the legal
parent/child
relationship between Mr and Mrs
X
and Y in a lifelong way, as a
parental
order
does.
order
is made, yet if it isn't the consequences are serious and lifelong for Mr and Mrs
X
and Y.
X
at the time of the application and at the time when the court is considering making a
parental
order,
Ms Segal submits the court has made clear in a number of cases that it should give a purposive interpretation to this provision, engaging with the Convention rights that are involved. Here, she submits, the Article 8 rights that exist both as to family life and identity provide the necessary foundation for the court to conclude that at the relevant time this requirement was satisfied.
Discussion and decision
X
and Y provide a compelling account of the impact on them of the information received in September 2021 that the legal relationship they all thought had been resolved and established was not in fact the case.
parental
relationship between Y and Mr and Mrs
X
had been resolved by the pre-birth
order
made in the United States and Mr and Mrs
Z
had been completely divested of any
parental
relationship, although remained an important part of Y's background. The discovery that Mr and Mrs
Z's
legal status is entirely at odds with the intention and expectations of all parties came, understandably, as a
very
great shock. That misapprehension continues to impact in real terms. Given Y's age, the protection of his inheritance rights under the Inheritance (Provision for Family and Dependants) Act 1975, and consequences that flow from his legal status as a child of Mr and Mrs
X,
and not of Mr and Mrs
Z,
is of particular significance. Mr and Mrs
Z's
legal status is entirely at odds with the intention and expectations of all parties.
parents
is questioned legally in my home country, where I have lived all my life, have been educated, have my social life and now my profession, brings into question my identity as British…my identity is here, as the child of British
parents'.
He continues 'The granting of a
parental
order
would mean that it would never again be possible to challenge legally our family tree and would restore my understanding of surrogacy as being a 'normal' part of life, rather than something which leads to one's relationship with
parents
or grandparents being questioned…If this application is not granted, I will never be able to be considered in law to be their son. That is simply unimaginable for us all….my
parents
have been my
parents
in every way since birth. They have made all of the decisions about my care and welfare; they have always been there for me as a child and now as an
adult.
My identity as their legal child is wholly dependent on this application being granted. It is of fundamental importance to me and to any children I might go on to have.'
parental
order
is a bespoke
order,
created specifically for surrogacy arrangements, requiring, for example, the need for evidence of the biological connection. It is an
order
that has a transformative effect, affecting the status of all parties if an
order
is made. It impacts the legal relationships in a lifelong way, with long term practical and psychological implications for everyone's identity, in particular the child the subject of the
parental
order.
As Sir James Munby set out in re A and others (Legal
Parenthood:
Written Consents) [2016] 1 WLR 1325 the question of who, in law, is or are the
parents
of a child is 'a question of the most fundamental gravity and importance. What, after all, to any child, to any
parent,
never mind to future generations and indeed to society at large can be more important, emotionally, psychologically, socially and legal, than the answer to the question: Who is my
parent?
Is this my child?'
X
and Y (s54 (1) (a)) and that he was carried by Mrs
Z
(s 54 (1) (b)). Mr and Mrs
X
are married (s54 (2)), domiciled in this jurisdiction (s54 (4) (b)) and they are both over 18 years (s54(5)). Mr and Mrs
Z
consent to the court making a
parental
order
(s54 (6) and (7)) and the court should authorise any element of the payments made, amounting to about $12,000, that are other than for expenses reasonably incurred (s54(8)).
parental
order
(s54 (4)(a)), the evidence sets out that although Mr
X
has worked abroad he regularly spends time here. The witness statements from Mr and Mrs
X
and Y speak to the
very
close relationship that has existed between them all. Y has lived with them throughout his childhood and remains in
very
close contact with them, often spending time with them at their family home. A number of cases have demonstrated the need for the concept of 'home' to be construed flexibly. As was stated in AB [2019]
EWFC
22 (Fam) the court should take a 'broad and purposeful interpretation' to the concept of what is home.
parental
relationship with Mr and Mrs
X,
so those rights that are engaged can be properly and effectively recognised.
X
centred on the decision to extend the time limit as being one permitted by statutory interpretation (see [55]). Even if the court was wrong about that analysis, it was entirely justified to protect the Convention rights engaged (see [58]). As was made clear in Re
X,
each case will be fact specific and the court will anxiously consider whether the circumstances justify the application being made outside the six month period, bearing in mind the need to encourage applications for such
orders
being made promptly, whilst balancing the circumstances of the particular case and the consequences of an
order
not being made.
parental
order.
They had proceeded on the basis that it was not required in the light of the pre-birth
order
made in the United States, which secured the legal
parental
relationship between Mr and Mrs
X
and Y in that jurisdiction. Once Mr and Mrs
X
were alerted to the need for a
parental
order
they promptly sought legal advice and made this application. No other person would be prejudiced by this
order
being made. The benefits for all parties of an
order
being made are clear.
X
it would provide the lifelong security of their
parental
relationship with Y being recognised as a matter of law, in circumstances where despite having cared for Y since his birth and provided for all his emotional and psychological needs as
parents
at present they have no legal
parental
relationship with him. That would remain the position if an
order
is not made.
X's
child. As he describes in his statement, it is 'unimaginable' if the application is not granted and he would never be able to be considered in law as Mr and Mrs
X's
son.
Z
it will divest them of the legal
parental
relationship they retain in relation to Y in this jurisdiction, which will reflect the position in the United States and the reality of the day to day circumstances of the parties. It will not undermine the importance of their continuing relationship with Mr and Mrs
X
and Y and their role in his background.
adult
does not, in my judgment, preclude the court from making the
order.
Although s 54 HFEA 2008 sets out 'the court may make an
order
providing for a child to be treated in law as the child of the applicants…' the HFEA 2008 does not limit such applications being made only in relation to children in the same way as, for example, the ACA 2002 does in relation to children who are the subject of adoption applications. There is nothing in the analysis in Re
X
that seeks to suggest making
parental
orders
are limited to children, or in any information that has been provided about the policy considerations that underpin the legislation, in particular the time limit provided for in s54(3). In addition, it is of note this issue was not raised in the recent comprehensive Law Commission Consultation on surrogacy in 2019. Consideration of the time limit in Chapters 5 and 11 centred on whether or not the six month time limit should be retained and the provisional
view
in the Consultation paper that the time limit should be abolished.[1] Any limit on
orders
being limited to children is not raised or discussed. This perhaps reflects that as a matter of fact everyone remains the child of someone, even when they become
adults.
X,
even if I am wrong in the analysis set out above, I am entirely satisfied the HFEA 2008 should be 'read down' in such a way to ensure the Article 8 rights of Mr and Mrs
X
and Y to the family life they have established including, in particular, Y's identity rights are properly recognised. The protection of those rights needs to be 'practical and effective' and not 'theoretical and illusory' which making this
order
will satisfy.
parental
order
was made in relation to Y on 22 March
2022
in favour of Mr and Mrs
X.
Note 1 Building families through surrogacy: a new law; paragraph 11.19. Published 6 June 2019. [Back]