Fg and Another v Ij and Others
| Jurisdiction | England & Wales |
| Neutral Citation | [2024] EWHC 586 (Fam) |
| Year | 2024 |
| Court | Family Division |
2024 March 6; 21
Children - Orders with respect to children - Parental order - Child born pursuant to surrogacy agreement subsequently adopted - Whether court empowered to make parental order in favour of adoptive parents - Whether precluded by statutory provision that adopted child to be “treated in law as if born as child of adopters” - Adoption and Children Act 2002 (c 38), s 67(1) -
A child was born in the United States of America as a result of a gestational surrogacy arrangement, whereby an embryo was created using the adoptive mother’s egg and donor sperm and then placed in the womb of a surrogate. After the child’s birth the adoptive mother and her husband obtained an adoption order in the United States and became the child’s legal parents. That adoption order was automatically recognised in the United Kingdom pursuant to the Adoption and Children Act 2002F1, with the consequence that by section 67(1) of the 2002 Act the child was to be “treated in law as if born as the child of the adopters”. Subsequently the adoptive parents applied for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008F2, which empowered the court to make an order providing for a child to be treated in law as the child of the applicants if, as required by section 54(1)(a), the child had been carried by a woman who was not one of the applicants. The issue arose whether section 67(1) of the 2002 Act prevented the court from finding that the requirement of section 54(1)(a) of the 2008 Act was satisfied.
On the application—
Held, granting the application, that whereas adoption in general and the requirement in section 67(1) of the Adoption and Children Act 2002 in particular were concerned with the legal status of a child (specifically the identity of a child’s parent or parents as a matter of law), which was separate from the underlying factual history, section 54 of the Human Fertilisation and Embryology Act 2008 was concerned with the factual criteria necessary for a court to have jurisdiction to make a parental order, the requirement in section 54(1)(a) being specifically concerned with the precise factual question of who had “carried” the child during pregnancy; that, thus, the fact that by section 67(1) of the 2002 Act an adopted child was retrospectively to be “treated in law as if born” as the child of the adoptive mother did not alter the biological facts surrounding the child’s birth and did not preclude a finding being made that for the purposes of section 54(1)(a) of the 2008 Act the child had been “carried” by someone other than the child’s adoptive mother; that, in the present case, the court had power under section 54 of the 2008 Act to make the parental order sought since the evidence established that all the requirements of section 54 of the 2008 Act were satisfied, including the requirement that the child had been carried by a woman who was not one of the applicants, within section 54(1)(a); and that, accordingly, given that it would be in the child’s long-term welfare interests to do so, a parental order would be made (post, paras 18–26, 29–30).
The following cases are referred to in the judgment:
A and B (Children) (Surrogacy: Parental Orders: Time Limits), In re
AB (Surrogacy: Consent), In re
C (Surrogacy: Consent), In re
G (Children) (Residence: Same-sex Partner), In re
G (Parental Orders), In re
H v R (No 1)
L, In re
Q (A Child) (Parental Order: Domicile), In re
The following additional cases were cited in argument or referred to in the skeleton arguments:
A (A Child: Surrogacy: Section 54 Criteria), In re
B v C (Surrogacy: Adoption)
D (An Infant), In re[
E v R
H, In re
KK v Denmark (Application No 25212/21) [
Kroon v The Netherlands (Application No 18535/91) (
M v F (Legal Paternity)
MR v An tArd-Chláraitheoir[
R (TT) v Registrar General for England and Wales
Webster v Norfolk County Council
X (A Child) (Parental Order: Time Limit), In re
X (Parental Order: Death of Intended Parent Prior to Birth), In re
Z (A Child) (Surrogate Father: Parental Order), In re
APPLICATION for a parental order
The adoptive parents, FG and GH, entered into a gestational surrogacy agreement in the United States of America with the surrogate, IJ, and her husband, KL. In 2022 the Superior Court of California made an adoption order in respect of the child who was born to the surrogate, AB, naming the adoptive parents as the child’s legal parents. By virtue of the Adoption (Recognition of Overseas Adoptions) Order 2013 (SI 2013/1801) and sections 66(1)(d), 67(1) and 87(1) of the Adoption and Children Act 2002, that adoption was automatically recognised in the United Kingdom and was entered into the Adopted Children Register.
By an application dated 24 July 2023 the adoptive parents applied for a parental order pursuant to section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child. The respondents to the application were the surrogate, her husband and the child. The Secretary of State for Education accepted the court’s invitation to intervene on the issue, identified at a preliminary hearing, of whether the mandatory requirement in section 67(1) of the 2002 Act that the child was to be “treated in law as if born” to the adoptive mother precluded the court from holding that the requirements for making a parental order were met in so far as section 54(1)(a) of the 2008 Act required, for that purpose, a finding that the child had been carried by a woman who was not one of the applicants.
The judgment was delivered in private and is reported with permission of the judge on condition that the anonymity of the child and the family members be strictly preserved.
The facts are stated in the judgment, post, paras 5–11.
Dorothea Gartland KC and Edward Bennett (instructed by
Shabana Jaffar, solicitor (of
Tom Wilson (instructed by Treasury Solicitor) for the Secretary of State, intervening.
The surrogate and her husband did not appear and were not represented.
The court took time for consideration.
21 March 2024. SIR ANDREW McFARLANE P handed down the following judgment.
1 These proceedings relate to a child (“AB”) who was born as a result of a gestational surrogacy arrangement in the United States of America. The commissioning parents have applied to this court for a parental order pursuant to Human Fertilisation and Embryology Act 2008, section 54 (“HFEA 2008”).
2 Apart from the need for the court to extend time, the applicants would be entitled to the order that they seek, which is amply justified on welfare grounds, save for the fact that, in 2022, the applicants adopted AB pursuant to an adoption order made in the USA. The question for this court is whether the existence of the USA adoption order, which is recognised as a full adoption in England and Wales, prevents the court from granting a parental order.
3 Although it is not uncommon for the legal status of the commissioning parents to be established through adoption in a number of foreign countries following surrogacy, and although there are reported (and presumably unreported) cases of parental orders being made in England and Wales in such circumstances (for example In re G (Parental Orders) [2014] Fam Law 1114 and In re Q (A Child) (Parental Order: Domicile)[
4 Having identified the issue at a preliminary hearing, the proceedings were adjourned with an invitation to the Secretary of State for Education (“the Secretary of State”), who takes the lead on matters relating to adoption policy, to assist the court by intervening. I am grateful to the Secretary of State for accepting the court’s invitation, and I am particularly grateful to Mr Tom Wilson, counsel, who has provided a detailed skeleton argument agreeing with and supporting the detailed submissions made by Ms Dorothea Gartland KC and Mr Edward Bennett, counsel for the applicants. The application is also supported by the Parental Order Reporter and children’s guardian, through submissions by her solicitor Ms Shabana Jaffar (the child having been joined as a party at the previous hearing). Following receipt of the detailed skeleton arguments, I communicated to the parties that I, too, was in agreement with those submissions and that a parental order would therefore be granted. The...
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial
-
AB (a child), Re
...result of his/her parents having the dual status of being parents under a parental order and being his/her adopted parents. The act[2024] EWHC 586 (Fam) Case No: ZC23P01205 IN THE HIGH COURT OF JUSTICE FAMILY Royal Courts of Justice Strand, London, WC2A 2LL Date: 21 March 2024 Before : Sir ......