Strand, London, WC2A 2LL
B e f o r e :
| KB and RJ
|- and -
The Respondent did not appear and was not represented
J was represented by his Children's Guardian Nirmala Dutta
Hearing dates: 22-23 March 2016
Crown Copyright ©
Mrs Justice Pauffley:
Outline and issues
i. Whether the criteria under s.54 of the Human Fertilisation and Embryology Act 2008 are satisfied; and
ii. Whether the Court can or should make a parental order when the child is outside the jurisdiction of England and Wales and the parental order reporter has not seen J in a family setting in the UK.
As to the second issue, an undoubted difficulty arises in making progress towards achieving a final decision upon the application because the applicants have been unable to obtain a visa or British passport to permit J to enter the UK.
Current circumstances immigration difficulties
Section 54 of the HFEA the criteria
The child has been carried by a surrogate and the sperm or egg of one of the applicants was used to bring about the creation of the embryo
The commissioning couple must be married, civil partners or in an enduring family relationship
The parental order application must be made within six months of the child's birth
i. Parental orders are intended to have a transformative effect upon the legal relationship between the child and the parent;
ii. The child is biologically related to the commissioning father but may not be able to establish a legal relationship with him;
iii. The child is entitled to the social and legal benefits which flow from recognition of the parental relationship;
iv. The child should have a legal reality which matches the factual reality;
v. That the United Nations Convention on the Rights of the Child imposed obligations in respect of the right to identity and it may require a purposive reading of s.54 to preserve that right.
i. That the focus of the court's analysis should be upon the consequence of non-compliance as opposed to the imperative wording of the provision;
ii. If there is a breach of a statutory procedural requirement the modern approach is to look at the underlying purpose of the requirement, whether departure from it contravenes the letter of the statute and, if so, whether it renders it a nullity.
i. He imported and accepted the powerful analysis of Theis J in the case of A v P;
ii. He considered that s.54 went to one of the most fundamental aspects of status and to the identity of the child as a human being;
iii. He said the consequences of making or of not making an order would be lifelong and irreversible;
iv. He did not consider that Parliament could have intended to impose such hardship on parents and children so as to prevent them forever from making such an application;
v. That he could read down under s.3 of the Human Rights Act an interpretation which permitted him to make the order;
vi. That he did not consider the two years and two months to be a prohibitively long time.
i. That the couple had acted in good faith;
ii. That the enquiries undertaken by the couple did not disclose the need for a parental order;
iii. The applicants had thought they had done all that was necessary as their names were on the birth certificates;
iv. That they had been open with all professionals;
v. The female applicant sought specialist advice as soon as they became aware of the parental order requirement.
The child's home should be with the commissioning couple, one of whom or both must be domiciled in the UK, Channel Islands or Isle of Man
At the time of the making of the order the applicants must have attained the age of 18
The surrogate (and her husband or civil partner) must freely and unconditionally consent to the making of the parental order
"I can confirm that at the time of Master J's birth I was legally married to my husband Mr DSN. I was legally married but separated from my husband at the time Master J was conceived as a result of the implantation of an embryo at (the) clinic My husband has never given any specific consent to the treatment as we were separated at the time.
I declare that my husband abandoned me and my family in May 2009. I have no contact with my husband and I do not know his whereabouts"
i. He had not engaged in the treatment process in any way;
ii. He refused to participate in or engage with the Court process;
iii. He had known in general terms about the treatment and plan for his wife to act as a surrogate and had no objection to her doing so.
i. There was no record of his having been involved in the treatment in any way;
ii. He did not attend any appointments and there was no record of his signing any documents;
iii. The woman was referred to as the 'daughter of' in all clinic documents which suggested that the clinic understood her not to be married.
The court must be satisfied that no money or other benefit, other than reasonable expenses, has been received by the surrogate
"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."
The way forward
Epilogue (added on 1 August 2016)