Sitting at the Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| Mrs Y
|- and -
|- and -
|- and -
|- and -
(through her children's guardian
Ms Ruth Cabeza (instructed by Eskinazi & Co Limited) for the 3rd Respondent
Mrs & Mrs Z did not attend the hearing
Ms Melanie Carew (Cafcass Legal) as Advocate to the Court
Hearing dates: 10th March 2020 and 20th May 2020
Crown Copyright ©
Mrs Justice Theis:
"It is incredibly important to me to apply for a parental order. It is not just for myself or for [Mr and Mrs Z] (who have never intended to be her legal parents), but because I want her to have the surname [Y] and to have her father recognised. It will break my heart for her, and him, if it is not possible for [Mr Y] to be put on her birth certificate. We have been through so much for so many years; the clinic thought we deserved a chance to be parents, and [the egg donor and Mr and Mrs Z] all gave so much to make this possible. The fact that [Mr Y] has died should not change anything. The way [X] was conceived was all about love, and [Mr Y] is – and always will be – her daddy. I know, had he been here, that he would never have stopped talking about her, and she would have made him so proud. She deserves to have a parental order which recognises him as her father, and I hope that the court will find a way to make it possible."
Relevant legal framework
(1) On an application made by two people ("the applicants"), the court may make an order providing for a child to be treated in law as the child of the applicants if—(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and(c) the conditions in subsections (2) to are satisfied.
(2) The applicants must be—(a) husband and wife,(b) civil partners of each other, or
(c) 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.
(3) Except in a case falling within subsection (11), the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.
(4) At the time of the application and the making of the order—(a) the child's home must be with the applicants, and(b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.
(5) At the time of the making of the order both the applicants must have attained the age of 18.
(6) The court must be satisfied that both—(a) the woman who carried the child, and(b) any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43),
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
(7) Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child's birth.
(8) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of—(a) the making of the order,(b) any agreement required by subsection (6),(c) the handing over of the child to the applicants, or(d) the making of arrangements with a view to the making of the order,unless authorised by the court.
(1) "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section applies to primary legislation and subordinate legislation whenever enacted."
"26. Section 3 is a key section in the Human Rights Act 1998. It is one of the primary means by which Convention rights are brought into the law of this country. Parliament has decreed that all legislation, existing and future, shall be interpreted in a particular way. All legislation must be read and given effect to in a way which is compatible with the Convention rights 'so far as it is possible to do so'. This is the intention of Parliament, expressed in section 3, and the courts must give effect to this intention.
27. Unfortunately, in making this provision for the interpretation of legislation, section 3 itself is not free from ambiguity. Section 3 is open to more than one interpretation. The difficulty lies in the word 'possible'. Section 3(1), read in conjunction with section 3(2) and section 4, makes one matter clear: Parliament expressly envisaged that not all legislation would be capable of being made Convention compliant by the application of section 3. Sometimes it would be possible, sometimes not. What is not clear is the test to be applied in separating the sheep from the goats. What is the standard, or the criterion, by which 'possibility' is to be judged? A comprehensive answer to this question is proving elusive. The courts, including your Lordships' House, are still cautiously feeling their way forward as experience in the application of section 3 gradually accumulates.
28. One tenable interpretation of the word 'possible' would be that section 3 is confined to requiring courts to resolve ambiguities. Where the words under consideration fairly admit of more than one meaning the Convention-compliant meaning is to prevail. Words should be given the meaning which best accords with the Convention rights.
29. This interpretation of section 3 would give the section a comparatively narrow scope. This is not the view which has prevailed. It is now generally accepted that the application of section 3 does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may nonetheless require the legislation to be given a different meaning…
30. From this it follows that the interpretive obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3."
"32. From this conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation.".
'"39… Given that under the 1998 Act the use of an interpretative power under section 3 is the principal remedial measure, and that the making of a declaration of incompatibility is a measure of last resort, these statistics by themselves raise a question about the proper implementation of the 1998 Act. A study of the case law reinforces the need to pose the question whether the law has taken a wrong turning.
40. My impression is that two factors are contributing to a misunderstanding of the remedial scheme of the 1998 Act. First, there is the constant refrain that a judicial reading down, or reading in, under section 3 would flout the will of Parliament as expressed in the statute under examination. This question cannot sensibly be considered without giving full weight to the countervailing will of Parliament as expressed in the 1998 Act.
41. The second factor may be an excessive concentration on the linguistic features of the particular statute. Nowhere in our legal system is a literalistic approach more inappropriate than when considering whether a breach of a Convention right may be removed by interpretation under section 3. Section 3 requires a broad approach concentrating, amongst other things, in a purposive way on the importance of the fundamental right involved."
"122. The key to what is possible for the courts to imply into legislation without crossing the border from interpretation to amendment does not lie in the number of words that have to be read in. The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted. If the insertion of one word contracts those principles or goes beyond the scope of the legislation, it amounts to impermissible amendment. On the other hand, if the implication of a dozen words leaves the essential principles and scope of the legislation intact but allows it to be read in a way which is compatible with Convention rights, the implication is a legitimate exercise of the power conferred by section 3(1).".'
And at paragraph 124
"124. Sometimes it may be possible to isolate a particular phrase which causes the difficulty and to read in words that modify it so as to remove the incompatibility. Or else the court may read in words that qualify the provision as a whole. At other times the appropriate solution may be to read down the provision so that it falls to be given effect in a way that is compatible with Convention rights in question. In other cases the easiest solution may be to put the offending part of the provision into different words which convey the meaning that will be compatible with those rights. The preferred technique will depend on the particular provision and also, in reality, on the person doing the interpreting. This does not matter since they are simply different means of achieving the same substantive result."
"Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of the legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with the grain of the legislation."
In any given case, however, there may come a point where, standing back, the only proper conclusion is that the scale of what is proposed would go beyond any implication that could possibly be derived from reading the existing legislation in a way that was compatible with the Convention right in question. In that event, the boundary line will have been crossed and only Parliament can effect the necessary change.".
"In a number of passages in his speech, Lord Rodger indicated the boundaries of what is permissible. In para 111, he said that section 3(1) gives the court no power to 'change black into white' or to remove the 'very core and essence' or 'pith and substance' of what Parliament has enacted. In para 116 he said that it was not open to the court to depart substantially from a 'cardinal principle' of the legislation."
"His [the MP for Oxford's] point was that single people are able to adopt and to receive IVF, so why can they not get a parental order over surrogacy? The difference is this: adoption involves a child who already exists and whose parents are not able to keep the child, for whom new parents are sought. That is different, which is why there is no parallel. IVF involves a woman becoming pregnant herself and giving birth to her child – there is not a direct parallel. Surrogacy, however, involves agreeing to hand over a child even before conception. The Government are still of the view that the magnitude of that means that it is best dealt with by a couple. That is why we have made the arrangements we have."
"36. The principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout. Although the concept of who are a couple for this purpose has changed down the years, section 54 of the 2008 Act, like section 30 of the 1990 Act, is clear that one person cannot apply. Section 54(1) could not be clearer, and the contrast in this respect – obvious to any knowledgeable critic – between adoption orders and parental orders, which is a fundamental difference of obvious significance, is both very striking and, in my judgment, very telling. Surely, it betokens a very clear difference of policy which Parliament, for whatever reasons, thought it appropriate to draw both in 1990 and again in 2008. And, as it happens, this is not a matter of mere speculation or surmise, because we know from what the Minister of State said in 2008 that this was seen as a necessary distinction based on what were thought to be important points of principle.
37. Given that a parental order is a creature of statute, given that this part of the statutory scheme goes to the core question, the crucially important question, of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, in my judgment, a 'fundamental feature', a 'cardinal' or 'essential' principle of the legislation, to adoption the language of, respectively, Lord Nicholls and Lord Rodger. Putting the same point the other way round, to construe s54(1) as Miss Isaacs would have me read it would not be 'compatible with the underlying thrust of the legislation', nor would it 'go with the grain of the legislation'. On the contrary it would be to ignore what is, as it has always been, a key feature of the scheme and scope of the legislation."
"(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation."
"Causes of action" are not, however, confined to rights enforceable by action, strictly so called - that is, by action at law or in equity. They extend also to rights enforceable by proceedings in the Divorce Court, provided that they really are rights and not mere hopes or contingencies. They include, for instance, a sum payable for costs under an order of the Divorce Court, or a right to a secured provision under an order already made against a man before his death: see Hyde v. Hyde and Mosey v. Mosey and Barker."
"where he pointed out that all that the wife had was the hope that the court would in its discretion order a secured provision. She had no right to it at all until the order was actually made, and hence she had no cause of action at his death."
Interestingly, Denning LJ continued:
"While I entirely agree with that decision, I do not think that the fact that a cause of action is discretionary automatically takes it out of the Act. An injunction is a discretionary remedy, but, if a cause of action for an injunction subsisted at the death, I should have thought it would survive against the personal representatives. The only thing which takes a case out of the Act is the absence of an enforceable right at the time of death."
Denning LJ found that the ex-husband's estate was not liable to pay maintenance to the children as he had complied with the obligation to provide maintenance during his lifetime at the time of his death.
The question really is whether there is a cause of action or not, and whether the court is asked to exercise powers is the question which is relevant – not whether those powers are discretionary. If I have misled anybody by the use of the word "discretionary" – after all it was apt in that case – I regret having used such a word.
In his judgment, the case turned on the construction of the order. Morris LJ agreed, reading the words of the order as "involving an obligation on the husband which did not extend beyond the time of his death."
"I do not see why a claim for financial relief under the 1973 Act is any more a "hope or contingency" than a claim for damages in tort or for breach of contract. In each case, I would say that there is no enforceable right until the claim has been established to the satisfaction of the court."
"Is an order for the payment of costs which has not proceeded to taxation a cause of action within this section? Apart from Stroud's Judicial Dictionary, in which a cause of action is defined as the entire set of circumstances giving rise to an enforceable claim, a definition which appears to me to cover an order for costs, there is authority for saying that it is within the above section."
Marshall J then cited Sugden v Sugden and Denning LJ's definition of cause of action namely "rights that can be enforced … - as legal proceedings in the Queen's courts…which are rights and not mere hopes or contingencies" as supporting his view.
S54(1) On an application made by two applicants (or on an application brought on behalf of two applicants who, but for the fact that one of the applicants has died after the conditions in s54(1)(a) were met, would have met the requirements of s54(1)(b) and s54(2)) ("the applicants"), the court may make an order providing for a child to be treated in law as the child of the applicants if
(a) The child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,
(b) The gametes of at least one of the applicants were used to bring about the creation of the embryo, and
(c) The conditions in subsections (2) to (8) are satisfied.
Section 54(2) The applicants must be (or in the case of an application where an applicant has died were immediately prior to the applicant's death)
(a) husband and wife,
(b) civil partners of each other, or
(c) 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
Section 54(3) – No amendment required
Section 54(4) At the time of the application and the making of the order
(a) The child's home must be with the applicants (or in the case of an application where an applicant has died and the application is brought on his or her behalf by the surviving applicant, the child's home must be with the surviving applicant), and
(b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands of the Isle of Man.
Section 54(5) At the time of the making of the order both the applicants must have attained the age of 18 (or in a case where an applicant has died, the deceased applicant must have attained the age of 18 before his or her death).
Section 54(6), (7) and (8) – no amendment required.
(1) It permits the court to make an order by reference to the HFEA, read through the HRA 1998 lens.
(2) It avoids the court having to consider whether s 1 LR(MP)A enables the applicant Mrs Y to bring a claim on behalf of Mr Y's estate, or whether the right to apply for a parental orders 'vests' before the child in question is born.
(3) This route confines the wider implications of the court's decision to similar surrogacy situations thereby avoiding the issues that may arise on other potential claims under s 1 LR(MP)A.
(4) Following such a course is justified and proportionate, recognising the unique significance of parental orders, highlighted by Munby P in Re X  EWHC paragraph 54 as follows:"Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family."Thereby recognising the rights engaged under Articles 8 and 14.
(5) It means the applicants can remain as they are now, without the need for Mrs Y to be acting as executor to Mr Y's estate.
(6) In the event the court accepts these submissions the child's birth certificate should record, in accordance with the relevant regulations, the fact that Mr Y died.
"36. … It is difficult to see the policy justification for seeking to distinguish between these different situations, or for placing such difficult emotional decisions on people with such significant potential impacts. This merely seems to introduce a new version of discrimination based on a new category, without any justification as to why this has been done.
37. Trying to put a blanket ban on a person who is in a couple getting a single parental order is clumsy and inflexible, as well as discriminatory."
"3.7 … We agree with the Committee that there is a group of people not covered by the provisions of the initial draft order. There are circumstances where a new partner, a recently reconciled partner or someone not involved in the original surrogacy arrangement, may not wish to be the child's parent. The Committee raised concerns about couples in an enduring relationship. However, those in marriage or a civil partnership may also be affected in the same way. We therefore propose to remove all requirements in respect of relationship status."
Regulation 9 (4) (a) provides
"With respect to space 4 (father's name and surname) – (a) if, other than in a case to which sub-paragraph (b) applies, the father acquired after the child's birth a name or surname different from that borne by him at the date of the birth, the registrar shall (subject to section 10 of the Act) enter in space 4 the name and surname as at the date of the birth, following by the name and surname as at the date of the registration preceded by the word 'now' or, if the father is deceased, the name and surname at his death preceded by the word 'afterwards"
Regulation 9 (5) goes on to state
"With respect to spaces 5 and 6 (father's place of birth and occupation) – (b) if the father was deceased at the date of birth the registrar shall enter below the particulars in space 6 the word 'deceased"
(1) In both Harb v Aziz and Sugden v Sugden the applications the court was considering it was possible for an order to be made so that liability will fall against the payer after their death. This is referred to in Sugden v Sugden at page 134 and in Harb v Aziz at paragraphs 9 – 13.
(2) A feature of the analysis in Harb v Aziz at paragraphs 14 – 15 was the possibility that a claim could be made under the Inheritance (Provision for Family and Dependents) Act 1975.
(3) In both Sugden v Sugden and Harb v Aziz the Court of Appeal were constrained not to interpret s 1 LR(MP)A in a way that would have contradicted the intention of Parliament, which had provided a clear legislative framework that governed maintenance obligations of a spouse both before and after their death.
(4) The Court of Appeal in Harb v Aziz expressly stated the HRA did not apply at paragraph 28, as a right to maintenance is not a right within the meaning of the HRA, so did not consider the extent to which it may be possible to distinguish earlier cases.
(5) In Harb v Aziz it was the nature of the application not the point at which it was issued that determined the outcome.
(6) In Harb v Aziz the Court of Appeal placed reliance on the discretionary nature of the criteria under section 25 Matrimonial Causes Act 1973, which did not mean an order would be made. As a consequence the inherent uncertainty of outcome meant it gave no more than a hope that there would be any order, thereby taking it outside the provisions of s 1 LR(MP)O as being a cause of action subsisting against that person.
(7) An application for a parental order is not discretionary in the same sense, it is either granted or dismissed, with no range of orders which the court may identify as what is 'fair in all the circumstances of the case' as in s 25 MCA. Once the application is made and the s54 criteria met the court is bound to make the order if it meets the lifelong welfare needs of the child under s 1 ACA.
(8) There is no alternative legislative scheme which Parliament had intended should address the legal relationship of a child with his or her intended parents in circumstances where the intended parent who has the biological relationship with the child dies after the embryo transfer in accordance with s 54, but prior to the making of a parental order.
(9) The person who is most affected by this lacuna in the legislative framework is X.
(10) The intention behind s 1 LR(MP)A was to ensure that applications that would otherwise have abated on the death of a person could nonetheless survive to effectively access the court. The terms of s 1 (1) LR(MP)A are wide and Denning LJ in Sugden v Sugden confirms they do not exclude discretionary remedies, such as injunctions.
(11) No party will suffer an injustice in this case if the court permits the application to proceed under s1 LR(MP)A.
(12) X's rights to identity and to family life are clearly established, and therefore her rights under the HRA are engaged. These rights require the court to consider whether s 1 LR(MP)A can be interpreted as being capable of recognising Mr Y's claim, as an intended father, as existing at the date of his death or, if not, to read that provision down in such a way to include after 'or vested in him' the words 'including an application for a parental order where, but for death of the applicant after compliance with the provisions of s54 (1) HFEA 2008 and before the birth of the child, the provisions of s 54 HFEA would otherwise be met'.
"In any given case, however, there may come a point where, standing back, the only proper conclusion is that the scale of what is proposed would go beyond any implication that could possibly be derived from reading the existing legislation in a way that was compatible with the Convention right in question. In that event, the boundary line will have been crossed and only Parliament can effect the necessary change."
Article 8: Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
"54. Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about X's identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J's powerful expression, a transformative effect, not just in its effect on the child's legal relationships with the surrogate and commissioning parents but also, to adopt the guardian's words in the present case, in relation to the practical and psychological realities of X's identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial)  INLR 424, 429, referred to as "the psychological relationship of parent and child with all its far-reaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible: see G v G (Parental Order: Revocation)  EWHC 1979 (Fam),  1 FLR 286, to which I have already referred. And the court considering an application for a parental order is required to treat the child's welfare throughout his life as paramount: see in In re L (A Child) (Parental Order: Foreign Surrogacy)  EWHC 3146 (Fam),  Fam 106,  1 FLR 1143. X was born in December 2011, so his expectation of life must extend well beyond the next 75 years. Parliament has therefore required the judge considering an application for a parental order to look into a distant future…
61. Theis J focussed on that aspect of Article 8 which protects "family life" but Article 8 also protects "private life" and "identity" on which she appropriately laid stress, is an important aspect of "private life". So, any application for a parental order implicates both the child's right to "family life" and also the child's right to "private life". The distinction does not matter in the circumstances of the present case …. But I make the point because it is, I suppose, possible to conceive of a case where, on the facts it might be more difficult, or even impossible, to demonstrate the existence of "family life"
"The starting point is clear and remains essentially unchanged from that identified by Lord Penzance in Howard v Bodington (1877) 2 PD 203 and most recently re-stated by Sir Stanley Burnton in Newbold and others v Coal Authority  EWCA Civ 584,  1 WLR 1288. I must consider section 54(3) having regard to and in the light of the statutory subject matter, the background, the purpose of the requirement (if known), its importance, its relation to the general object intended to be secured by the Act, and the actual or possible impact of non-compliance on the parties. The question, as posed by Lord Steyn in Regina v Soneji and another  UKHL 49,  1 AC 340, is, Can Parliament fairly be taken to have intended total invalidity? As Toulson LJ put it in Dharmaraj v Hounslow London Borough Council  EWCA Civ 312,  PTSR 1523, Is any departure from the precise letter of the statute, however minor, to be fatal? And the assumption, as Sir Stanley observed, must surely be that Parliament intended a "sensible" result."
(1) As in Re X, Parliament has not explained its thinking why such a situation is excluded, when but for Mr Y's death prior to the birth all the requirements under s 54 would have been met following X's birth. There is no reason to believe Parliament either foresaw or intended the potential injustice which would result in this case if a parental order cannot be made in the circumstances in this case.
(2) Other provisions in the HFEA 2008 (ss 35 – 37) provide clarity about the status of the father of the child born as a result of assisted conception at the time when the embryo is transferred, or artificial insemination takes place, provided certain safeguards are in place, in particular consent. Consent is not an issue in this case, any consent required by s 54 is present and secure.
(3) The provisions set out in ss 39 and 49 HFEA provide clarity as to the status of the father in the circumstances of sub-paragraph (2) where they take place after his death, again with safeguards in place relating to consent.
(4) Parliament has recently, when considering the declaration of incompatibility made by the court in Re Z (No 2), signalled that it seeks to ensure that the law does not discriminate against different categories of applicants for parental orders on the grounds of relationship status.
(5) A parental order is the only route by which X can have her status regarding Mr and Mrs Y recognised in a way that was intended by the surrogacy arrangement, which a parental order was specifically created for.
(1) Both Articles 8 and 14 are engaged.
(2) Munby P foreshadowed at paragraph 61 in Re X a situation such as this, when he highlighted the part of Article 8 that protects 'private life'; as he stated there may be cases where it may be more difficult to establish 'family life'. Here X did not have the opportunity to establish 'family life' due to the premature death of Mr Y, but X certainly has an established 'private life' right for her own identity to be protected by legal recognition of her relationship with Mr Y. The court's responsibility is to 'guarantee not rights that are theoretical and illusory but rights that are practical and effective' (Marckx v Belgium (1979 – 80) 2 EHRR 330 at paragraph 31). As Russell J observed in Re A and B  EWHC 911 at paragraphs 62 – 63:"62. It is undeniably a basic and fundamental part of these children's identity as human beings that the Applicant/father is their biological father, and that the Applicant/mother played a full part in the process of their conception having selected an egg donor, as she has herself explained to them and as they have grown up believing. The Applicants were their planned and intended parents from before conception and since the day on which they were born. All of these facts, fundamental to these children's very existence and identity are far from those present in adoption. Again I quote from the President's judgment in Re X; "Adoption is not an attractive solution given the commissioning father's existing biological relationship with X. As X's guardian puts it, a parental order presents the optimum legal and psychological solution for X and is preferable to an adoption order because it confirms the important legal, practical and psychological reality of X's identity; the commissioning father is his biological father and all parties intended from the outset that the commissioning parents should be his legal parents."63. To make adoption orders would effectively deny adequate recognition of the Applicants' and children's identity and their right to family life under Article 8 ECHR, particularly their established identity, their biological and social ties. There is no doubt in this case that as far as these children are concerned their identity has already been formed as the biological children of their father and the commissioning of their conception and birth involving their mother."
(3) Although I have concluded that Parliament cannot have intended that a child in X's position would be excluded from such recognition, without the 'reading down' required by s 3 the provisions s 54 (1), (2) (a) (4) (a) and (5) could prevent a parental order being made.
(4) From the extensive review set out above it is clear such a reading down does not go against the 'grain of the legislation', on the contrary it seeks to provide the order that it is accepted best meets a child born as a result of this type of arrangement. The parental order was specifically created for a child born as a result of a surrogacy arrangement, such as in this case.
(5) No alternative order that can properly and accurately to reflect X's identity, including her relationship with Mr Y. A child arrangement or special guardianship order in favour of Mrs Y would mean Mrs Y secures parental responsibility limited to X's minority, but such an order would not negate X's legal relationship with Mr and Mrs Z, and would result in her biological father remaining a legal stranger to X. Mrs Y could apply for an adoption order, but only as a single applicant, which may give her the status of a legal parent but it will not accurately reflect X's identity in relation to either Mr or Mrs Y. This route would create something of a legal fiction, as s 67 ACA states that the effect of an adoption order is the adopted person is to be treated in law as if born as a child of the adopter, which does not reflect the reality of the surrogacy arrangement entered into. In addition, such a course could have a distorting effect as Mrs A would be an adoptive parent, the register would be marked that way and the tracing of the child's natural parents is still done in the same way as for any other adopted child.
(6) For X her connection with her biological father would be safeguarded in any other birth circumstances naturally or by way of assisted conception, consequently it is discriminatory for the circumstances of her birth to prevent this. A failure of the law to recognise her connection with her biological father as the result of her birth through a surrogacy arrangement amounts to a breach of her Article 14 right to enjoy her Article 8 rights without discrimination on the grounds of birth.
(7) Mrs Y's article 14 rights are also engaged. She is discriminated against based on her relationship status as a widow, rather than being married. In Re Z (No 2) Munby P stated at paragraph 17"Sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 are incompatible with the rights of the Applicant and the Second Respondent under Article 14 ECHR taken in conjunction with Article 8 insofar as they prevent the Applicant from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple."
(8) The consequences of not making a parental order in this case is that there is no legal relationship between X and her biological father; X is denied the social and emotional benefits of recognition of that relationship; X may be financially disadvantaged if there is not legal recognition as the child of her biological father; X does not have a legal reality that matches the day-to-day reality; X is further disadvantaged by the death of her biological father.
(9) The only order that will confer joint and equal parenthood on Mr and Mrs Y is a parental order. Only that order will ensure X's security and identity in a lifelong way respecting both her Article 8 and 14 rights.
"[X] is too young to be aware of the application before the Court today or to express a view about the decision the Court is required to make for her. She does, however, only know [Mrs Y] as her mother since she had been her main caregiver since her birth. She was the first person to hold her and feed her and the attachment will be strong. [X] is flourishing under her intended mother's care. It is therefore reasonable to assume that, if she could, she would say that she would want to live with and be cared for by her intended mother and remain in the home that has been provided for her by her biological father."
In relation to Mr Y she notes
"[X's] home is adorned with pictures, paintings and the presence of her father in each room and is shared by a person who knew him the best and loved him very much. [X's] identity will be truly informed and celebrated if she is permitted to remain with her intended mother. Moreover, a child's birth certificate is a very powerful document; it is a tangible document which states very clearly who you are, where you come from and confirms you parentage and this will be essential for this child as she matures."