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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A & Anor v P & Ors [2011] EWHC 1738 (Fam) (08 July 2011) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2011/1738.html Cite as: [2012] 3 WLR 369, [2012] Fam 188, [2012] 2 FLR 145, [2011] EWHC 1738 (Fam), [2012] 1 FCR 408, [2011] Fam Law 1080 |
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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.
![]() ![]() ![]() ![]() ![]() ![]() ![]() | ||
FAMILY
DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
A |
1st ![]() | |
- and - |
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A |
2nd ![]() | |
-and- |
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![]() | 1st Respondent |
|
-and- |
||
![]() | 2nd Respondent |
|
-and- |
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B |
3rd Respondent |
____________________
Applicant
Ms Deirdre Fottrell (instructed by Mullinger Banks Solicitors) for the 3rd Respondent
Hearing dates: 7th June 2011
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Mrs Justice Theis DBE:
'Subject to theprovisions
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) Theapplication
was made by two
people
"the
applicants"
(s 54 (1))
(2) The child has been carried by a woman who is not one of theapplicants,
as a result of the
placing
in her of an embryo (s 54(1)(a))
(3) The gametes of at least one of theapplicants
were used to bring about the creation of the embryo (s 54(1)(b))
(4) Theapplicants
were married (s 54(2)(a)
(5) Theapplication
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 theparental
![]()
order
(s54 (6))
(1) s 54 (4) (a) that at the time of theapplication
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 theorder
both the
applicants
have attained the age of 18 years.
(3) Whether the court should exercise its discretion and give retrospective approval to the sumspaid
which would otherwise have contravened s 54(8)
S 54 (4) At the time of theapplication
and the making of the
order
(a)The child's home must be with theapplicants....
S 54 (5) At the time of the making of theorder
both the
applicants
must have obtained the age of 18.
(i) That it was the common intention of theapplicants
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 deceasedapplicant.
(iii) That considerable emotional and social advantages will follow for the child if aparental
![]()
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 allprimary
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 ofParliament
but it should seek to adopt any
possible
construction which is compatible with and upholds convention rights. (R
v
A [2001] UKHL 25
para
44; Ghaidan
v
Godin-Mendoza [2004] UKHL 30
para
41)
(iii) Article 8 includes apositive
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 toprovide
![]()
protection
of the rights of children which are real and effective and not theoretical and illusory.
(i) ThatParliament
intended that
surrogacy
arrangements can only be made by
persons
in 'an enduring relationship'.
(ii) That it did not intend thatpersons
who were single could be commissioning
parents.
(iii) It cannot be said to be the intention ofParliament
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 thepurpose
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. StatesParties
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, StatesParties
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 furtherorder
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 aparental
![]()
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 bothapplicants;
(ii) Theparental
responsibility of the surrogate mother and her husband is extinguished;
(iii) The child is registered on theparental
![]()
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 bothapplicants;
(v)
Each of the
applicants
has the same legal status is respect of the child.
(3) A declaration ofparentage
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)
[2007] 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 ofparentage
in this case would be insufficient in this case for the following reasons:
(i) If no furtherorders
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 byvirtue
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 childvis
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 aparental
![]()
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 adoptionorder
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) Thepractical
impediments to the making of an adoption
order
in favour of Mrs A are as follows:
(i) Further consents from the surrogateparents
would be necessary (s19 ACA 2002) or their consent would need to be dispensed with (s 20 ACA 2002).
(ii) Anorder
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 thatapplication,
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 aparental
![]()
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 otherorder
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 beproportionate
and justified.
(3) In theparticular
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 clearpurpose
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 aparental
![]()
order
when they made their
application.
(6) Such an interpretation willprotect
the identity of B and the
family
unit in accordance with Article 8 UNCRC.
(7) It is clearly in B's interests that aparental
![]()
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'sdeath,
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.
Welfare