A A v P (1St Respondent) P (2Nd Respondent) B (3Rd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis DBE |
| Judgment Date | 08 July 2011 |
| Neutral Citation | [2011] EWHC 1738 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD10P02154 |
| Date | 08 July 2011 |
[2011] EWHC 1738 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Theis Dbe
Case No: FD10P02154
and
and
and
Ms Laura Moys (instructed by Young and Lee Solicitors) for the 1 st and 2 nd Applicant
Ms Deirdre Fottrell (instructed by Mullinger Banks Solicitors) for the 3 rd Respondent
Hearing dates: 7th June 2011
This judgment is being handed down in private on Friday 8 th 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.
Although the circumstances that have arisen in this case are extremely rare, they bring into sharp focus again, the difficulties that can arise in international surrogacy arrangements. I have therefore given permission for this anonymised judgment to be reported.
The application before me was made by a married couple, Mr and Mrs A, for a parental order relating to a little boy B who was born on 12 th April 2010. The application was made pursuant to section 54 of the Human Fertilisation and Embryology Act 2008 ("HFEA 2008").
B was born in India. There was in place a surrogacy agreement between Mr and Mrs A and a clinic in India which included provision for the payments being made to the surrogate mother. The agreement was lawful in the jurisdiction where it was made. It involved payments to the surrogate mother which are, more likely than not, to be more than expenses reasonably incurred and, consequently, invalid in this jurisdiction unless authorised by the court.
B is the biological child of Mr A, there is uncertainty as to whether or not Mrs A is biologically related to him. The evidence from the consultant gynaecologist at the clinic confirmed that 5 embryos were transferred the surrogate mother, 2 were formed from Mrs A's oocytes and 3 from donor oocytes. All oocytes were fertilised with Mr A's semen.
B was placed with Mr and Mrs A after his birth, initially in India and then in this jurisdiction having obtained a British passport.
Mr and Mrs A issued their application for a parental order on 8 th July 2010.
Tragically, Mr A was diagnosed with liver cancer and died on 19 th December 2010.
Following directions having been made the matter was listed before me on 12 th May 2011. I had the benefit of a full report from the Parental Order Reporter appointed by the court. I adjourned that hearing until 7 th June to enable (i) further evidence to be obtained regarding the payments made and the surrogacy agreement and (ii) for B to be joined as a party to assist the court on the legal issues raised following the death of Mr A.
The matter came back before me on 7 th June 2011 when I heard detailed submissions on the law from both Ms Moys, on behalf of Mrs A and Mr A's estate (the latter instruction is via Mrs A as the sole executrix of Mr A's estate) and Ms Fottrell on behalf of B. They both submit the court should make a parental order. I directed counsel to file and serve a written document setting out the other forms of order that would be available to secure B's position. That document was filed on the 10 th June.
Does the cause of action survive the death of one of the joint applicants after the making of the application but prior to the making of the order? There is no definition of "applicant" in either the HFEA 2008 or the relevant rules. The Law Reform (Miscellaneous Provisions) Act 1934 s 1 (1) provides
'Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, is estate. Provided that this subsection shall not apply to causes of action for defamation…'
In D (J) v D (S) [1973] 1 All ER 349 the court was concerned with a summons under s 17 of the Matrimonial Causes Act 1965 for a variation of the post nuptial settlement in respect of property. The court determined the husband's death prior to the hearing extinguished his claim. This was mainly due to the fact that one of the relevant factors the court had to take into account in reaching its decision involved an examination of the relative needs of the parties at the time of the hearing. That was clearly not possible where one of the parties had died.
The application I am concerned with can be distinguished. An application for a parental order is essentially declaratory in nature and confers a fundamental status on an applicant and on the child, who is the subject matter of the application. The relevant welfare considerations all relate to the child. Therefore, I consider the court does, as a matter of law, have jurisdiction to consider the application following the death of Mr A.
On the evidence I have before me I am satisfied that the following requirements under section 54 HFEA 2008 are met:
(1) The application was made by two people "the applicants" (s 54 (1))
(2) The child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo (s 54 (1) (a))
(3) The gametes of at least one of the applicants were used to bring about the creation of the embryo (s 54 (1) (b))
(4) The applicants were married (s 54 (2) (a)
(5) The application was made within 6 months of B's birth (s 54 (3))
(6) The mother is domiciled in the United Kingdom (s 54 (4) (b))
(7) The surrogate mother and her husband have unconditionally agreed to the making of the parental order (s54 (6))
There are three further matters that the court must be satisfied about. They are:
( 1) s 54 (4) (a) that at the time of the application and the making of the order the child's home is with the applicants.
( 2) s 54 (5) that at the time of the making of the order both the applicants have attained the age of 18 years.
(3) Whether the court should exercise its discretion and give retrospective approval to the sums paid which would otherwise have contravened s 54 (8)
I shall deal with (1) and (2) together. The relevant parts of s 54 (4) and (5) provide
S 54 (4) At the time of the application and the making of the order
(a) The child's home must be with the applicants….
S 54 (5) At the time of the making of the order both the applicants must have obtained the age of 18.
Ms Moys submits that the court must consider whether it is possible to purposively construct the relevant provisions to allow for the common intention of the applicants to be met and for an order to be made which is clearly in the best interests of the child. Pursuant to Human Fertilisation and Embryology Act 2008 (Parental Orders) (Consequential, Transitional and Saving Provision) Order 2010 s1 Adoption and Children Act 2002 ("ACA 2002") is imported into s 54 HFEA. In Re L [Commercial Surrogacy] 1 FLR 1423 Hedley J emphasised that the consequence of that development is that 'welfare is no longer merely the Court's first consideration but becomes its paramount consideration' (para 9).
The key question is whether the word 'applicants' in s 54 can be construed in this case so as to require two people to make the application but not require that there be two living applicants at the time of the making of the order.
Under s 54 (1) the discretionary nature of the Court's task is set out, it states that the court 'may make an order' but that is linked to the mandatory conditions set out in the remainder of s54.
In considering whether to construct the statute in the way suggested Ms Moys submits the court must have regard to the purpose of the relevant provisions. The clear intention behind s 54 is to avoid circumstances where a single person could apply for a parental order or enter into a surrogacy agreement as the commissioning parent or for orders to be made in favour of applicants who had not attained the age of 18 years. Counsel have been unable to find anything in the legislation, or during the consideration of the Bill by Parliament, where Parliament contemplated a situation where one or other of the commissioning parents died between the making of the application and the making of the order.
It is submitted some guidance can be obtained from analogous cases under other legislation. Where it remains in a child's interests to do so an adoption order may be made in favour of both applicants, even where the applicants have separated. In Re WM [Adoption; Non-Patrial] 1 FLR 132 Johnson J in considering whether such an order could be made the court took into account the following: (a) the advantage to the child of becoming a child of the family from an emotional and social perspective, (b) the financial advantage to the child under the Matrimonial Causes Act 1973 (c) the protection of the child's inheritance rights under the Inheritance (Provision for Family and Dependants) Act 1975.
In applying the analysis that has been used in analogous cases to this case it is submitted by Ms Fottrell, on behalf of B, the following factors can be taken into account:
(i) That it was the common intention of the applicants as the commissioning parents and the surrogate parents that the child should be the child of both applicants.
(ii) That the child is the biological child of the deceased applicant.
(iii) That considerable emotional and social advantages will follow for the child if a parental order is made which...
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