X v B
| Jurisdiction | England & Wales |
| Court | Family Court (EW) |
| Neutral Citation | [2022] EWFC 129 |
| Year | 2022 |
2022 Oct 28
Children - Orders with respect to children - Parental order - Two men in platonic relationship becoming parents through organised surrogacy agreement - One of them as biological father registered on birth certificate in United States - Other parent moving to United Kingdom and remaining married to wife - Child spending time with each parent together and separately - Parents making application for parental order - Whether applicants two persons “living as partners in an enduring family relationship” as required by legislation - Whether order to be made -
While living in the United States Mr X temporarily separated from his wife, Mrs X, and met Mr Y. Following a brief intimate relationship they remained in contact and formed what they described as a close and loving bond in an ongoing platonic relationship. Although Mr X moved to the United Kingdom with Mrs X, the two men discussed having children and decided to proceed with a surrogacy arrangement with the approval and support of Mrs X. Mr Y’s sister agreed to be the gestational surrogate and an embryo was created at a fertility clinic from the gametes of Mr Y and Mr X’s niece. A pre-birth order was not secured so only Mr Y appeared on the child’s US birth certificate. The young child spent time with both Mr Y and Mr X together and separately in their respective homes. While Mr Y was regarded as the main carer, so that Mr X could work and provide financial support, they very much “co-parented”, making decisions jointly as to the child’s day-to-day and longer-term care. A plan was formed for Mr Y to move to the UK and for the child to remain there during his education, living between Mr X and Mr Y’s homes. Accordingly the two men applied for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008F1 to secure their legal parental relationship with the child, now aged three, in this jurisdiction. Mrs X was clear that although she supported the application and enjoyed a close and loving relationship with the child she did not seek any legal rights or responsibilities. Although many of the qualifying criteria of section 54 were readily established the court was concerned, inter alia, with whether the applicants were “two persons who are living as partners in an enduring family relationship” for the purposes of section 54(2)(c) of the 2008 Act and whether the child “had his home with the applicants” at present, and at the time that the application was made, for the purposes of section 54(4).
On the application—
Held, granting the application, that the requirement in section 54(2)(c) of the Human Fertilisation and Embryology Act 2008 that the applicants be “two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other” was a question of fact to be considered on a case-by-case basis and subject to no further statutory definition or requirement; that in the present case the evidence available to the court established that the criterion was met; that to an outsider the nature of the applicants’ relationship might have been described as unusual or unconventional but the court was required to remain focused on the statutory requirements; that, in that regard, it was relevant that the applicants were in a long-term committed relationship with each other which had been in existence for a number of years and that, while Mr X had remained married and living with his wife, the existence of that relationship had not detracted from the way Mr Y and Mr X operated as committed and loving partners, particularly in relation to the way they had made the decision to have a child, the steps they had taken to that end and what they had done following the child's birth; that Mr X was arguably in two relationships that could meet the statutory definition but there was no requirement for any relationship within that definition to be exclusive, although it was a very relevant factor which the court was required to take into account in assessing the evidence; that, further, a careful consideration of the established authorities revealed a purposive approach in interpreting the requirement, pursuant to section 54(4) of the 2008 Act, that the child’s home be with the applicants; that in the present case the child had his “home” with the applicants between their two respective homes and on occasion they spent time when they were all together; that the child did not have his home with anyone else other than with the applicants and it was the only “home” he had known; and that, accordingly, where it was also clear that Mr X was domiciled in the UK and that the applicants had brought the application as soon as they had realised it was necessary, the criteria set out in section 54 of the 2008 Act had been met and the welfare needs of the child required the making of the parental order (post, paras 17, 18, 22-24, 25, 26, 28–30, 32, 37–38).
APPLICATION
In 2019 the child, G, was born in the United States of America to a surrogate mother, B, in a noncommercial arrangement using the gametes of the second applicant, Y, and the niece of the first applicant, X. On their move to the United Kingdom and by application under section 54 of the Human Fertilisation and Embryology Act 2008 the applicants sought a parental order to recognise and secure their legal parental relationship with the child. Their application was supported by the surrogate mother and the first applicant’s wife. On 14 October 2022 the child was joined as a party to the proceedings and the court had the benefit of a detailed report from the parental order reporter.
The judgment was delivered in private and is reported with permission of the judge on condition that the anonymity of the child and their family members be strictly preserved.
The facts are stated in the judgment, post, paras 1–3, 7–13.
Natalie Gamble (of NGA Law, Burgate) for the prospective parents.
Shabana Jaffar, solicitor (of Cafcass Legal Services) for the child, by the children’s guardian.
The surrogate mother did not appear and was not represented.
The court took time for consideration.
28 October 2022. THEIS J handed down the following judgment.
Introduction1 This matter concerns an application for a parental order in relation to G, now age 3 years. The applicants are Mr X and Mr Y. They seek a parental order to secure their legal parental relationship with G in this jurisdiction. The respondent to the application is Ms B, the gestational surrogate who carried G. Ms B is Mr Y’s sister.
2 Although committed to co-parenting G, Mr X and Mr Y do not live together although they spend a lot of time together. Mr X is married to Mrs X and remains living with her.
3 G has been joined as a party to these proceedings and is represented through his Children’s Guardian, Mr Verity, and Ms Jaffar, from Cafcass Legal.
4 The court is indebted to Ms Gamble, on behalf of the applicants, and Ms Jaffar, on behalf of G, for their excellent written documents setting out the relevant legal framework and how it should be applied in this case.
5 Although the arrangements in this case have been described as unconventional, the court needs to remain focused on the relevant legal framework and G’s...
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