X v Y (Adult Parental Order)
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWFC 26 |
| Year | 2022 |
| Court | Family Court |
2022 March 22; April 5
Children - Orders with respect to children - Parental order - Couple applying for parental order in respect of child born over 20 years earlier under surrogacy arrangement - Whether child having “home … with” couple - Whether application to be entertained notwithstanding failure to comply with six-month time limit - Whether court empowered to grant order in respect of adult child -
The applicants, a married couple domiciled in the United Kingdom, made a surrogacy agreement with a married couple domiciled in the United States of America, pursuant to which an embryo containing the gametes of both applicants was transferred to the surrogate mother, who in due course gave birth to a boy. A court in the United States made an order declaring the applicants to be the child’s joint legal parents and thereafter all parties conducted their lives on the understanding that the legal position in the United States was reflected in the United Kingdom. On realising over 20 years later that this was not the case, the applicants applied under section 54 of the Human Fertilisation and Embryology Act 2008F1 for a parental order providing for their son to be treated in law as their child. Relying on their rights to family life guaranteed by article 8 of the Convention for the Protection of Human Rights and Fundamental FreedomsF2, the applicants contended: (i) that at the time of the application their son’s “home” was “with” them, as required by section 54(4)(a) of the 2008 Act; (ii) that the application should be allowed notwithstanding that it had not been made within six months of their son’s birth, as required by section 54(3); and (iii) that there was nothing in the 2008 Act that prevented a parental order being made in respect of a “child” who was an adult.
On the application—
Held, granting the application, (1) that, when applying section 54(4)(a) of the Human Fertilisation and Embryology Act 2008, the concept of “home” should be construed flexibly and the term “home … with” should be given a broad and purposeful interpretation; and that, reading section 54(4)(a) of the 2008 Act in a way that was compatible with the applicants’ rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as required by section 3 of the Human Rights Act 1998, section 54(4)(a) was satisfied in the present case, given that the applicants and their son had remained as one family unit, their lives had remained entwined and inextricably linked and the family life they had established for the purposes of article 8 had existed throughout their son’s life to date (post, paras 48–49).
(2) That, when determining whether to entertain an application for a parental order which had been made outside the six-month time limit set out in section 54(3) of the 2008 Act, the court would anxiously consider whether the circumstances justified the application being made outside the time limit, bearing in mind the need to encourage applications for such orders being made promptly whilst balancing the circumstances of the particular case and the consequences of an order not being made; and that the application in the present case would be entertained, given that the application for a parental order had been promptly made once the applicants had been alerted to the need to apply for it, no other person would be prejudiced by the order being made and it was clear that the applicants, their son and the surrogate mother and her husband would benefit from an order being made (post, paras 50–54, 57).
(3) That, on a true construction, the court had power to make a parental order under section 54 of the 2008 Act in respect of a “child” who was an adult, there being nothing in authority, nor in any of the policy considerations that underpinned the legislation, to suggest that parental orders were limited to children (post, paras 55–57).
The following cases are referred to in the judgment:
A (Legal Parenthood: Written Consents), In re
A v C
A v P
AB (Foreign Surrogacy: Children out of the Jurisdiction), In re
Marckx v Belgium (Application No 6833/74) (
Mennesson v France (Application No 65192/11)
X (A Child) (Parental Order: Time Limit), In re
The following additional cases, supplied by courtesy of counsel, were cited in argument or referred to in the skeleton arguments:
A (A Child: Surrogacy: Section 54 Criteria), In re
A and B (Children) (Surrogacy: Parental Orders: Time Limits), In re
B (Foreign Surrogacy), In re
Ghaidan v Godin-Mendoza
Milulić v Croatia (Application No 53176/99) [
Odièvre v France (Application No 42326/98) (
X (Parental Order: Death of Intended Parent Prior to Birth), In re
ZH (Tanzania) v Secretary of State for the Home Department
APPLICATION
In December 2021 the applicants, Mr and Mrs X, applied for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the third respondent, their adult son, Y, born in the United States of America in 1998 under a surrogacy arrangement with the first respondent, the surrogate mother, Mrs Z and her consenting husband, the second respondent, Mr Z. Having been informed of the hearing, the surrogate couple completed the C52 acknowledgment of service, confirming their consent to the court making a parental order. All parties supported the application. On 11 January 2022 the court gave directions, inter alia, that the Secretary of State for Health and Social Care and CAFCASS be given notice of the application. The Secretary of State responded, stating they did not wish to intervene or make representations and CAFCASS confirmed in writing that their remit was limited to representing children.
The matter was heard in private and the judgment is reported by leave of the judge on the basis that the anonymity of the parties, the adult child and members of their families be strictly preserved.
The facts are stated in the judgment, post, paras 7–19.
Deirdre Fottrell QC (instructed by
Sharon Segal (instructed by
The surrogate mother and her husband did not appear and were not represented.
The court took time for consideration.
5 April 2022. THEIS J handed down the following judgment.
Introduction1 The court is concerned with an application for a parental order made by Mr and Mrs X in relation to their son, Y who was born in 1998 following a surrogacy arrangement in the United States. Y is a respondent to the application, as is the surrogate, Mrs Z, who carried Y, and her husband, Mr Z.
2 This is the first time the court has been asked to consider making a parental order for a person who is now an adult. As a consequence it will be necessary to consider the provisions of the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”), in particular whether the criteria in section 54 are met.
3 Before turning to the background and legal framework it is right to record one of the defining features of this case. It was not until September 2021 that any of the parties had any idea the legal relationships were anything other than Mr and Mrs X being Y’s legal parents. That reflected the legal position in the United States, where the surrogacy arrangement had taken place and orders made there confirmed that position. Everyone had worked on the basis and conducted their lives on the understanding the legal position there was reflected here.
4 It therefore came as a complete surprise to both Mr and Mrs X and Y when they were contacted by the surrogate, Mrs Z in September 2021, she first alerted them to the need for a parental order here. She had recently become aware of this due to another child she had carried following a surrogacy arrangement being in the same position.
5 Having had the opportunity to get specialist advice this application was issued, directions made and the matter listed for hearing. There is no issue between the parties that the order should be made. The court is extremely grateful for both the solicitors and counsel who have advised the parties and those representing Y on a pro bono basis. They are each experts in this area and their excellent written and oral submissions outline a route in this case for the order everyone seeks to be made.
6 Whilst the hearing focused on the law, it is important not to lose sight of the enormous significance of this application for the individuals involved. The effect of a parental order will recognise what they had all thought was the position for so many years. It is clearly the right order to make, the consequences of not making it would be significant and lifelong and not reflect the reality for everyone on the ground. Mr and Mrs X and Y have each eloquently and powerfully described in their statements the need for this order to be made in their circumstances. They also recognise the wider issues this case raises, and the need for the message to go out to others who may be in a similar situation to...
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