Mr G v Mrs G
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE HEDLEY |
| Judgment Date | 11 May 2012 |
| Neutral Citation | [2012] EWHC 1979 (Fam) |
| Docket Number | NG11P00811 |
| Court | Family Division |
| Date | 11 May 2012 |
[2012] EWHC 1979 (Fam)
The Honourable Mr Justice Hedley
NG11P00811
IN THE HIGH COURT OF JUSTICE
SWANSEA DISTRICT REGISTRY
FAMILY DIVISION
SITTING AT CARDIFF
Cardiff Civil Justice Centre,
2 Park Street,
Cardiff,
CF10 1ET
MR J. FURNESS QC and
MR G. JONES appeared for the Applicant.
MISS A. RUSSELL QC appeared for the Respondent.
D was born on 28 th January 2011 as a result of a surrogacy agreement between on the one hand Mr. and Mrs G the commissioning parents and SK as the surrogate. The child was handed over at birth and has effectively been in the care of the commissioning couple ever since. They have, however, separated as of September of last year, since when the child has been in the primary care of Mrs G with contact to Mr. G.
The legal status of D at birth was this. His mother for all purposes was SK. That comes about by virtue of the operation of Sections 33(1) and 48(1) of the Human Fertilisation & Embryology Act 2008, which I shall refer to as the 2008 Act.
Mr. G is the biological father and he holds parental responsibility by virtue of Section 4(1) of the Children Act 1989. Mrs G had neither legal nor biological status in relation to D, save insofar as she obtained permission to make an application for an order under Section 8, which in the circumstances it was not necessary to have done. Thus there was a demonstrable need for the obtaining of a parental order pursuant to Section 54 of the 2008 Act, and an application, albeit undated, was duly made, presumably in November of last year.
A parental order was apparently made on 6 th May 2011 and was amended insofar as it related to the father's name on 26 th July 2011. It is important to remember that proceedings for a parental order are entirely statutory in origin; they are governed by Section 54 of the 2008 Act, and by Part 13 of the Family Procedure Rules 2010. It is apparent that the proceedings which resulted in this order were in many respects gravely flawed, and thus it is important that they are examined in some detail.
The Family Procedure Rules deal with surrogacy applications in Part 13, and by Part 13 Rule 5(1) it is provided: "As soon as practicable after the issue of the proceedings: (a) the court will…" and I interpolate to stress the mandatory "…(i) if Section 48(1) of the 2002 Act applies, consider whether it is proper to hear the application; (ii) subject to paragraph (2), set a date for the first directions hearing; (iii) appoint a parental reporter; and (iv) set a date for the hearing of the application."
A directions hearing was duly set for 6 th May 2011. It appears that a parental reporter was appointed from CAFCASS but no report had been received, as one would not have expected it to have been by the date of the first directions hearing. On 6 th May 2011 Mr. and Mrs G attended before the circuit judge at the County Court, and this court has been provided with a transcript of those proceedings. The hearing was, as would not be surprising in those circumstances, attended by Mr. and Mrs G in person and was relatively brief. The profoundly surprising aspect of it is that the judge purported to make a final order on that occasion. The evidence she had of the surrogate mother's consent was comprised in the acknowledgement of service. She had no parental reporter's report, indeed I do not think the case had by that stage been allocated to an individual worker. There was no analysis of the requirements of Section 58(4), although it appears that at least some £10,000 had changed hands. There was no consideration of welfare issues so far as D was concerned and, although it is apparent that the application was made under the correct Act and the judge was considering it under the correct Act, the order as drawn was drawn under the repealed Statute of 1990.
In due course a CAFCASS report was filed on 29 th June 2011 against what at least the officer had been given as a filing date of 12 th July. There is no evidence that this report was ever considered by the judge. Although the amending order postdates the CAFCASS report, it appeared simply to be a correction under the slip rule in relation to the father's name. The report contains no consideration of the matters required under Section 54(8) other than an acknowledgement of the sum of money that changed hands and an assertion that it was reasonable expenses, and the report considers the checklist under the Children Act 1989, whereas the proper statutory checklist is the Adoption & Children Act 2002.
Part 13 Rule 9 of the Family Procedure Rules specifies what is to be done at the first directions hearing, that is to say for fixing a timetable, giving directions in relation to a parental order reporter and other evidence, considering parties' status and, finally, giving directions about the final hearing. None of those things happened at the first directions hearing and, of course, no final hearing was ever set, let alone took place.
It has to be said that it is difficult to imagine that a hearing could go more awry than this one did, but in fairness one must also observe this. First, circuit judges will very rarely encounter applications under the 2008 Act because those that are wholly straightforward are invariably dealt with in the Family Proceedings Court and those that have a significant difficulty in them are almost always referred to the High Court. It is apparent from a reading of the transcript that the learned judge did not appreciate fully that she was dealing with a radical change of status in terms of the making of the order, but of course it also has to be said that she met with no opposition at all from Mr. and Mrs G, nor would one have expected her to, they were no doubt delighted that matters were being concluded in so simple and speedy a manner. But for reasons which will appear in a moment, the parties' positions as of now are radically different, and it is Mr. G's contention that those proceedings were so flawed that they must for that reason alone be set aside and, of course, it is said that the application can be re-heard because, of course, the six month time limit applies only to the filing of the application. The setting aside of an order does not affect the validity of the application.
It is important to observe, however, that the motive for this application to set aside the order is not principally founded on the procedural flaws. Mr. G made an application dated 9 th November 2011. It is important to remember that this emerged in the context of Section 8 proceedings over contact and residence, as one will shortly observe, and also it emerged in the context of a contested fact-finding which culminated in a judgment given by Mr. Recorder Fox on 16 th November 2011. The essence of the actual application to set aside relates to an allegation that Mrs G concealed her true intentions at the time the order was made, that is to say an intention formed by then to separate from Mr. G and to live with the child as a lone parent. Mr. G contends that had those matters been known at the time, first Mr. G himself would not have continued as an applicant, although of course that would have been subject to the permission of the court and, secondly, that SK would not have consented to the making of the order. By reason of Section 54 subsections (2)(a), (4)(a) and (6), the reality is that the order could not then have been made in any circumstances, whatever the merits otherwise may have been of the application.
The court at this hearing is confronted by an application to set aside the order of 6 th May on two quite separate but nevertheless interconnected bases. First, that the order was wrongly made on 6 th May by reason of the numerous procedural defects and, secondly, it was obtained by a concealment which, if known, would have resulted in no order being made. This is the case that is listed before me this week. The Section 8 proceedings, to which I have referred, proceed separately in the County Court, and an agreed order in relation to how those are to be dealt with will be produced by the parties.
I need now to deal with some of the procedural matters that were raised by Miss Alison Russell QC in her submissions on behalf of Mrs G. First of all it was said that this case should have been dealt with by way of an appeal and not by way of an originating application. One has to respond first that there are considerable merits in that submission, but one also has to recognise that in this case it has been necessary to investigate the evidence, including hearing some oral evidence and, for reasons that I will explain a little more fully, it would not be practicable in this case for the Court of Appeal to remit the case for a re-hearing should it have thought that the order should have been set aside. For those reasons I have decided to exercise original jurisdiction and hear this application on its merits.
The second procedural matter raised was in relation to the position of SK the surrogate mother. She has twice been refused permission to intervene in the proceedings. Her position is, of course, radically altered if this order were set aside, and accordingly her rights and her position will have to be kept in mind by the court as it considers the proper outcome of this application.
Thirdly, Miss Russell also raised the question as to whether D himself should be separately represented because, of course, the application goes to a fundamental question of status on which his interests should be independently promoted.
Once again there is clear force in those submissions and they are matters...
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