Re Z (A Child) (No 2)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 20 May 2016 |
| Neutral Citation | [2016] EWHC 1191 (Fam) |
| Docket Number | Case No: ZC15P00214 |
| Court | Family Division |
| Date | 20 May 2016 |
[2016] EWHC 1191 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: ZC15P00214
Miss Elizabeth Isaacs QC and Mr Adem Muzaffer (instructed by Natalie Gamble Associates) for the applicant father
Mr Teertha Gupta QC and Mr Andrew Powell (instructed by CAFCASS Legal) for Z
Miss Samantha Broadfoot and Miss Dorothea Gartland (instructed by the Government Legal Department) for the Secretary of State for Health
Hearing date: 16 May 2016
Sir James Munby, President of the Family Division:
This is the sequel to a judgment I handed down on 7 September 2015: In re Z (A Child) (Surrogate Father: Parental Order) [2015] EWFC 73, [2015] 1 WLR 4993. I need not repeat the facts ( Re Z, paras 2–4) except to note that Z, who is the biological son of the applicant father, was carried to birth by a surrogate mother.
The father, as I shall refer to him, applied to the family court for a parental order in accordance with section 54 of the Human Fertilisation and Embryology Act 2008. Faced with the difficulty that the language of section 54 contemplates that any such order can be made only on the application of "two people", he sought to persuade me that section 54 could be "read down" in accordance with section 3(1) of the Human Rights Act 1998 so as to enable a parental order to be made on the application of one person. Applying the principles expounded by the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, I held ( Re Z, paras 36–39) that section 54 could not legitimately be "read down" in this way.
The father's fall-back position ( Re Z, para 24) was that he would, if necessary, seek a declaration of incompatibility in accordance with section 4 of the 1998 Act.
Then, as now, the father was represented by Miss Elizabeth Isaacs QC and Mr Adem Muzaffer, instructed by Miss Natalie Gamble of Natalie Gamble Associates. I summarised their argument as follows ( Re Z, paras 18–19):
"18 Fundamentally, says Miss Isaacs, the objection to the requirement in section 54(1) of the 2008 Act that an application for a parental order can be made only by two people is that this is a discriminatory interference with a single person's rights to private and family life, which is therefore inconsistent with articles 8 and 14 of the Convention. She submits that the father's relationship with Z, actual as it now is or prospective at the time Z was born, implicates both the father's and Z's rights under article 8. She relies, if need be, upon the decision of the European Court of Human Rights in Anayo v Germany (2010) 55 EHRR 164, paras 57, 60 (though note the comment of Baker J in In re G (Children: Sperm Donors: Leave to apply for Children Act Orders) [2013] 1 FLR 1334, para 120). She also relies upon the article 12 "right to marry and to found a family" – which she construes as embracing separate rights to "marry" and to "found a family" – and upon X and Y v United Kingdom (1977) 12 DR 32.
19 Adopting the analysis in In re G (Adoption: Unmarried Couple) [2009] AC 173, paras 8, 107, 132, Miss Isaacs submits that being single (in contrast to being one of a couple, whether married or not) is a "status" within the meaning of article 14 of the Convention."
My judgment concluded with this important caveat ( Re Z, para 41):
"I have been prepared to assume for the purposes of this judgment the correctness of Miss Isaacs's submissions based on articles 8, 12 and 14 of the Convention and of the propositions which she seeks to derive from them. There has been no need for me to come to any concluded view on these matters and it is better that I do not, for these are issues which may yet need to be considered and ruled on if, as may be, the father decides to seek a declaration of incompatibility."
That was on 7 September 2015. An order I made on 8 September 2015 recorded the father's intention to seek a declaration of incompatibility. The application came on for hearing before me in the High Court on 16 May 2016. Z was represented by his Guardian and by Mr Teertha Gupta QC and Mr Andrew Powell. The Secretary of State for Health was represented by Miss Samantha Broadfoot and Miss Dorothea Gartland.
In my earlier judgment ( Re Z, para 3) I had described, though without using the phrase, the legal limbo in which Z finds himself. I referred to the fact that, for the moment, his position had been secured by making him a ward of court, though commenting that in the nature of things this could not provide a permanent solution. In an order which I made on 10 September 2015 I directed that Z was to remain a ward of court and placed him in the care and control of his father. In order to avoid the need for the father to be making constant applications to the court (see Lowe & White, Wards of Court, ed 2, 1986, paras 5–2, 5–6, 5–16), the order gave him permission to (i) temporarily remove Z from the jurisdiction as he sees fit, (ii) agree to any medical examination or treatment that Z may require and (iii) apply for a British passport for Z. I understand that the father subsequently applied for a British passport for Z which was issued in November 2015.
In support of the father's application for a declaration of incompatibility, Miss Isaacs, Mr Muzaffer and Miss Gamble appropriately prepared a very detailed skeleton argument. Because of the course the proceedings have taken (see below) I can be fairly brief in summarising their core submissions.
They submit that section 54 of the 2008 Act, insofar as it confines the power of the court to make a parental order to cases where the application is made by "two people", is incompatible with the rights of both the father and Z, either (a) under article 8 or (b) under article 8 taken in conjunction with article 14. (The argument is no longer based on article 12.) Amongst the authorities they rely upon in support of the case based on article 8 are the important decisions of the Strasbourg court on 26 June 2014 in the two linked cases of Mennesson v France (Application no. 65192/11) and Labassee v France (Application no. 65941/11). Central to their argument in relation to article 14 is the decision of the House of Lords in In re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] AC 173.
The guardian supported the father's case.
The Secretary of State's position was set out very clearly in the position statement dated 13 May 2016 prepared by Miss Broadfoot and Miss Gartland:
"… having carefully considered the evidence and skeleton arguments filed on behalf of the [father] and the Guardian in this case, the Secretary of State concedes that the current provisions of section 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 are incompatible with Article 14 taken in conjunction with Article 8. The concession is made on the basis of the statement of reasons which is attached to this position statement."
I should set out that statement of reasons in full:
"1 By this claim the [father] seeks a declaration that section 54(1) and (2) of the Human Embryology and Fertilisation Act 2008 is incompatible with his and [Z's] human rights under Articles 8 and / or Article 14 taken in conjunction with Article 8. The [father's] position is supported by the child, acting through his Guardian.
2 The Secretary of State has carefully considered the evidence and skeleton arguments filed on behalf of the [father] and the Guardian.
3 The Secretary of State accepts that the facts fall within the ambit of Article 8 and that Article 14 is engaged. It is accepted that there is a difference in treatment between a single person entering into a lawful surrogacy arrangement and a couple entering the same arrangement. This difference in treatment, namely the inability to obtain a parental order, is on the sole ground of the status of the commissioning parent as a single person versus the same person were he part of a couple. The Secretary of State accepts that, in light of the evidence filed and the jurisprudential developments both domestic and in Strasbourg, including for example Mennesson v France (Application no. 65192/11) taken with Wagner v Luxembourg (Application no. 76240/01), this difference in treatment on the sole ground of the status of the commissioning parent as a single person versus being part of a couple, can no longer be justified within the meaning of Article 14."
The Secretary of State's position was further elaborated in a letter from the Government Legal Department dated 11 May 2016:
"… my client concedes that the current provisions are...
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