MODERN FAMILIES: Case-law update

Declaration of Parentage cases

Re S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897 (King, Moylan and Peter Jackson LJJ – 27 July 2023)

In this case the appellant (A) was appealing against a decision that she was not the legal parent of children born to the respondent (R), her former civil partner.

R gave birth to children following fertility treatment while in a relationship with A. A was not named on any of children’s birth certificates.

The oldest child’s surname was a combination of A and R’s, and the younger child had A’s surname as a middle name followed by R’s surname.

On separation, R moved to a Gulf State with the older children. A stayed in England with the younger children. A applied for a Child Arrangement Order (CAO), arguing her status as a same-sex parent prevented her from making an application in the Gulf State.

It was held at first instance that A was not the legal parent of the younger children as she had not made a deliberate choice in relation to R’s fertility treatment. It was further held that the court had no jurisdiction in respect of the younger children and only had jurisdiction under sections 2(1)(b) and 3(1)(b) in respect of the oldest child.

A appealed.

Issues

Whether A was the legal parent of the children, and whether the English court had jurisdiction under FLA 1986 to consider A’s CAO application in respect of the children habitually resident in the Gulf State.

Held

The appeal was allowed and the first instance decision deemed unsustainable. The test was incorrectly narrowed. Section 42 of the Human Fertilisation and Embryology Act (HFEA) 2008 created a statutory presumption that a female civil partner of a gestational mother would be treated as a parent of a child born following assisted reproduction unless shown that she did not consent to the procedure. The wording of HFEA 2008 must be given effect to. Where consent is an issue before the court, the question is “has it been shown on the balance of probabilities that the spouse or civil partner did not consent to the assisted reproduction that was undertaken?”

It was further held that the court had jurisdiction to consider A’s CAO application.

P v Q & ors [2024] EWFC 85 (B) (Knowles J – 19 April 2024)

This was an application by a biological mother (P) for a declaration under section 55A of the Family Law Act (FLA) 1986 that the biological father (F) of a child (X) was a legal parent, and that her former wife (Q) was not.

P registered as X’s first legal parent on her birth certificate. Q registered as second legal parent with parental status founded on HFEA 2008 ss34 and 42.

There was dispute as to whether X was conceived via artificial or natural insemination while P and Q were married.

P and Q chose to attempt to conceive via artificial insemination in 2016, eventually finding F to act as sperm donor through an online advert.

Two unsuccessful attempts were made at artificial insemination using F’s sperm. P and F then met on three occasions, without Q’s knowledge, to engage in sexual intercourse, followed by a final attempt at artificial insemination a day or two after P and F’s last meeting. P found out she was pregnant two weeks later.

Following P and Q’s relationship breakdown, P revealed to Q that she had had sexual intercourse with F and asserted her belief that X had been conceived as a result of natural insemination as opposed to the attempts at artificial insemination.

P asserted therefore that Q had not properly acquired parental status under HFEA 2008 ss34 and 42 because she had not consented to natural insemination and there was uncertainty as to the conception.

Issues

Whether Q’s legal parental status recorded at X’s birth could stand despite the uncertain circumstances surrounding X’s conception, or whether the declarations as sought by P should be made.

Held

Declarations were granted. HFEA 2008 s42 only applied where there had been artificial insemination of a woman or the “placing in her of an embryo or of sperm and eggs”. “Another woman” therefore could not be a legal parent where that condition had not been met.

In those circumstances, the court had to fall back upon the common law in order to establish parentage. The fact that P and Q were married did not create a presumption that X was Q’s legal child. Case law had consistently upheld the need for compliance with the requirements of the HFEA 2008.

The starting point at common law was that P and F were X’s mother and father. That would remain the position unless displaced by the HFEA 2008 framework. The presumption of consent in section 42 could be rebutted by evidence that consent had not been given and/or that assisted reproduction may not have occurred. The burden of proof was on P to provide that evidence.

The court was unable to find on the balance of probabilities whether X was conceived via natural or artificial insemination. The presumption of Q’s legal parenthood was therefore rebutted and the common law position applied. FLA 1986 s58 required that where the criteria for a declaration of parentage were met, the court had to make the declaration unless to do so would be contrary to public policy, which it was not in the circumstances of the case.

Surrogacy – consent cases

Re C (Surrogacy: Consent) [2023] EWCA Civ 16, [2023] 2 FLR 109 (King, Thirlwall and Peter Jackson LJJ – 16 January 2023)

Here the parties had entered a written surrogacy agreement in England. Child (C) was placed in the care of the respondent intended parents (the Rs) seven hours after birth. The appellant (A) surrogate described feeling a sense of loss following C being placed in their care.

The relationship between A and the Rs had deteriorated during the pregnancy. Communication had become an issue. A described feeling an emotional attachment to C and feeling undervalued by the Rs, who described feeling they were being kept at arm’s length by A.

The Rs applied for a parental order two months after C’s birth. A returned the acknowledgement form to the court opposing the application, stating she did not consent to a parental order.

A wished to retain PR “to allow her to have legal rights to spend time with C”.

The parties subsequently attended mediation to rebuild trust and their relationship.

A later filed a statement confirming her consent to the parental order being made. Consent was reliant on conditions: that a CAO was made allowing her monthly contact with C and a PSO made preventing the Rs from moving without her prior written consent.

A remote hearing took place in August 2021. A parental order was made by a Circuit Judge. A CAO was also made providing “lives with” to the Rs and contact for A to spend time with C once every six months, at Christmas and on birthdays.

A was a LiP and gave her oral consent to the parental order, saying she saw no other way to “move forward without it”.

Following the hearing, A wrote to the Rs’ solicitors stating she had felt pressured into consenting and had in fact only provided conditional consent, but not however expressing an intention to appeal at this stage.

Contact arrangements broke down in 2022 and A applied to discharge/vary the CAO.

A was granted permission to appeal the parental order out of time.

Issues

There were three issues for the Court of Appeal:

1. Whether, on a straight reading of section 54(6), A gave free and unconditional consent to the making of the parental order.
2. Whether, if A did not give free and unconditional consent, the ECHR required the court to assume and exercise a power to dispense with consent, and thereby to preserve the parental order.
3. What order the court should make in respect of the underlying application for a parental order if the answer to each of the above was no.

Held

On the first issue it was held that requirement for free, informed and unconditional consent “means exactly what it says”. Consent that covers all three elements is required. Whether the consent is given reluctantly or gladly would be immaterial.

In this case, A’s consent was not free or unconditional. It was given in reliance on a promise of a CAO for contact. The parental order should not have been made.

On the second issue, the court rejected, unhesitatingly, the argument that section 54(6) could be read in a way to confer a dispensing power on the court in relation to consent. The right of a surrogate not to provide a consent is a pillar of the surrogacy legislation.

C and the Rs’ Article 8 rights would not be violated by the parental order being set aside in light of A’s lack of consent. The ECHR did not require a parental order, made without valid consent, to be left in place.

On the third issue, the choice was between dismissing the underlying parental order application or remitting it. As A’s position was that she would not consent to a parental order, the application was therefore dismissed. The court would have looked favourably on remitting the application if there was a possibility of a parental order resulting from it. The parties having taken stock, however, there was no possibility in the circumstances.

The appeal was allowed and the underlying application for a parental order dismissed.

Re QR (Parental Order: Dispensing with consent: Proportionality) [2023] EWHC 3196 (Fam), [2023] All ER (D) 166 (Nov) (Knowles J – 3 November 2023)

This was an application brought by intended parents (the As), who were both Indian nationals resident in E&W, for a parental order under HFEA 2008 s54 following a gestational surrogacy arrangement in India. The child was aged 3 at the time of proceedings.

The surrogate was married. Her husband’s name was unknown to the As and the court. He therefore could not consent to the parental order being made. The surrogate had signed a written surrogacy agreement prior to the birth.

The As had tried to have children on their own and had sought medical help in 2013 when unable to become pregnant. There were three unsuccessful rounds of IVF in India. Arrangements for a surrogacy using donor eggs were then made using a team of IVF specialists in Mumbai.

The As asked to meet the surrogate but were advised this was not customary. They received photos/updates from the doctor handling the surrogacy arrangements. The As sought further information and were told that the surrogate was estranged from her husband. No precise details about where the surrogate lived were ever obtained.

Issues

Three key issues arose from the facts for the High Court to address:

1. The six-month time limit pursuant to section 54(3) had expired.
2. The requirement needed to be met that at least one of the As could demonstrate abandonment of their domicile of origin in India, and acquisition of a domicile of choice in England and Wales.
3. The issue of consent from the surrogate and her husband.

Held

On the first issue it was held that although application was made over two years after the expiry date, no sensible result was to be achieved if the As were barred from applying for a parental order. The section 54(3) six-month time limit for bringing application was disapplied.

On the second issue, the court was satisfied that the first A (the husband) had demonstrated he was firmly anchored in E&W and had abandoned his domicile of origin in India, acquiring a new domicile of choice in England.

On the third issue the relevance of section 54(7) was considered, with Knowles J confirming that the agreement of a person who cannot be found is not required. The court considered the efforts made by the As in attempting to find the surrogate and the paramountcy of the child’s welfare when making a parental order (as required by Re D and L [2012] EWHC 2631 (Fam)). It was held that the As had already taken steps to trace the surrogate, while maintaining sensitivity towards the cultural issues arising from attempts to locate her and not wanting to compromise her safety or wellbeing. Further steps could not be justified reasonably or proportionately.

In relation to the surrogate’s husband, the court had not known anything about him. The As had been told by the doctor that the surrogate was estranged from him, but the court could not be certain that the doctor had been given his details by the surrogate.

Arguments that the consent of both the surrogate and her husband should be dispensed with because they were incapable of being found were accepted by the court.

Surrogacy – adoption cases

Re Z (Surrogacy: Step-parent Adoption) [2024] EWFC 20 (Theis J – 30 January 2024)

Following the Court of Appeals’s decision in Re C (Surrogacy: Consent) [2023] EWCA Civ 16, the parties returned to court. The issue of consent arose again, this time in the context of adoption.

There was an application for a step-parent adoption order in favour of the non-biological father (F), and an application to vary/discharge the CAO for contact with the surrogate (G) who was also C’s biological mother.

The applications were opposed by G but supported by the local authority and the child’s guardian. 

Issues

Whether a step-parent adoption order should be made extinguishing the ties between child and surrogate, in circumstances where a parental order cannot be made.

Also, at issue was whether G’s consent to the making of the step-parent adoption order should be dispensed with under section 52(1)(b) of the Adoption and Children Act (ACA) 2002 – ie whether the child’s welfare required consent to be dispensed with and the order made absent the biological mother’s consent.

Held

The step-parent adoption order application was refused. The intended F’s application could be seen as relevant to the child’s need to belong to a family that had legal standing. On the other hand, it could be considered a challenge to the child’s biological mother, the feelings she had for the child and the role of motherhood/biological origin in the child’s life.

The evidence pointed to the parties agreeing that G would have a continuing role in the child’s life after birth, although the detail was not agreed. G’s evidence, that she would not have entered into the surrogacy arrangement without that assurance being in place, was accepted by the court.

G had PR but had thus far not actively exercised it. She was in agreement that her PR should be severely restricted in the context that she did not dispute that the child should remain living with the intended parents.

Taking into account the history of difficulties with contact, Theis J concluded that the risk of the intended parents not complying with orders of the court, due to their inability to properly recognise and understand the welfare need for the child to have a meaningful continuing relationship with G and why, was likely to increase if the adoption order were made.

The child’s welfare needs did not require G’s consent to the adoption order to be dispensed with.

Instead, a CAO was made including provision for the child to live with the non-biological father, therefore conferring PR on him.

Proceeding this way meant both fathers would share PR, day-to-day living arrangements were secured, and G retained PR in a limited way.

A CAO lacked the permanence of an adoption order, but Theis J concluded that an adoption order would add another complex dynamic for the child and a CAO more accurately reflected the child’s reality.

Re AB (a child) [2024] EWHC 586 (Fam), [2024] All ER (D) 132 (Mar) (Sir Andrew McFarlane P – 21 March 2024)

The child was born following a gestational surrogacy agreement in the US. The intended parents applied for a parental order in England under HFEA 2008 s54.

The application was justified on welfare grounds and ordinarily would have been permitted. However, complexity arose in that, in 2022, the applicants had obtained an adoption order in the US, subsequently recognised in this jurisdiction.

The parents made an application for a parental order following advice that such order was necessary in relation to matters in connection with a family trust (which predated the reform of UK adoption law in 1976).

Issues

Whether the existence of the US adoption order (recognised in this jurisdiction) precluded the court from granting a parental order.

This precise issue had not come before the family court before. The Secretary of State for Education was permitted to intervene.

Held

The US adoption order did not preclude a parental order being made in the present case.

McFarlane P analysed the two legal frameworks. A distinction was drawn between ACA 2002 s67(1) (concerned with the status of the child in relation to adoption) and HFEA 2008 s54(1) (concerned with the factual criteria to be satisfied in order to establish jurisdiction for a parental order).

McFarlane P found there was no reason to depart from the approach of separating the legal status generated by an adoption from the underlying factual history, as applied in H v R (No 1) [2020] EWFC 74, Re L and Re M [2022] EWFC 38 and X v Y (Secretary of State for the Home Department intervening) [2020] EWHC 1829 (Fam), although these decisions dealt with the impact of the status of adoption on different statutory provisions to the present case.

The fact that a child could be treated in law as the child of their adopted parents did not alter the biological facts surrounding their birth.

Re H (Surrogacy: Step-parent adoption) [2023] EWFC 214 (Theis J – 28 November 2023)

Here male civil partners (E and L) had a child (H) through a gestational surrogacy arrangement with a friend who lived in Argentina. H was conceived using L’s gametes and a known donor egg. The surrogate and L were therefore legal parents following H’s birth.

Aa application for a step-parent adoption order was brought by E (ie non-biological F) under ACA 2002 s51(2) .

The criteria for a parental order under HFEA 2008 s54 were met. However, a step-parent adoption order was sought in order to secure the legal parental relationship and in turn enable H to apply for Italian citizenship (E having dual British and Italian citizenship).

Italian legal advice confirmed that an adoption order was more likely to be recognised in Italy than a parental order.

The application was supported by the surrogate, H’s guardian and the adoption agency.

Issues

Whether a step-parent adoption order should be made in the circumstances of the case.

Held

Application granted. Although a parental order was the more conventional order following surrogacy, there is no requirement for a parental order to be applied for.

There were identified welfare benefits that supported the step-parent adoption order being made. It would differentiate between H’s fathers in a way that a parental order would not.

The step-parent adoption order would have the effect of enabling both E and L to be legal parents with PR and the added welfare benefit to H of recognising her Italian heritage, her sense of identity and the family culture.

Any suggestion that the order may not fully reflect H’s background in the same way as a parental order was met by the powerful evidence supporting the grant of the order.

Re N (Adoption – Surrogacy) [2024] EWFC 41 (Theis J – 29 February 2024)

An 18-year-old (N) had been born via a surrogacy arrangement in 2005.

Application for an adoption order was brought by N’s biological father and his wife (the intended mother) (the As) in November 2023.

The respondents (Rs), N’s genetic mother and her husband (N’s legal parents) refused to consent to the order being made on the basis that it would sever their legal connection with N.

N was made a party to proceedings and supported the order being made. The local authority was also in support.

There had been previous extensive litigation following N’s birth involving what the court found to be “deliberate, prolonged and premeditated deceit” on behalf of the Rs, who had entered the surrogacy agreement without ever intending to hand N over to the As.

An Order was made in 2007 for N to live with the As and contact arrangements for him to see the Rs. N lived with the As consistently from 2007 onwards.

A further order was made in 2010 providing for indirect contact only between N and the Rs.

Contact ceased in 2021 when N turned 16 and the order lapsed. Through his own choice, N did not continue the contact but engaged in some infrequent WhatsApp communication with his biological mother’s husband.

Therefore, there was no direct contact between N and the Rs since N was aged 4. N considered the As to be his parents in all senses.

Issue

Whether, under ACA 2002 ss47(1) and 47(2), the adoption order should be made despite the Rs withholding their consent.

Held

Competing Article 8 rights of the parties were considered. It was held that N’s loss of legal relationship with the Rs and their wider family was a relatively low interference in their family life due to the history of the case, their limited involvement with N and the situation on the ground being unlikely to change.

Conversely, it would be a significant interference in N and the As’ family life if the adoption order was not made. The disconnect between Ns factual and legal position would remain. The application was granted.

N provided a statement and oral evidence detailing the reasons why he wanted his relationship with the As legally recognised, including having to explain the disconnect in the factual and legal relationship each time he used his birth certificate and also not feeling like he was completely a part of the As’ family.

The Annex A report concluded that granting the order would give N a sense of “belonging and equality within his family” and “create a lifelong legal connection to the people who have acted as his parents throughout the majority of his life” and also provide closure and finality as N enters adulthood.

Theis J concluded that the evidence overwhelmingly established that N’s welfare needs required that the adoption order be made.

This is the first reported decision where, in a surrogacy context, the consent of the birth parents to an adoption order has been dispensed with on welfare grounds.

Surrogacy – other notable cases

A v B & ors (Wardship: Parental Order: s10(9) Leave Application) [2023] EWHC 1680 (Fam) (Theis J – 4 July 2023)

Here the child (Y) was born following a surrogacy arrangement made in the US between a sole father (B) and a married surrogate. B and the applicant (A) conceived a child (X) through fertility treatment in 2017 but were not in a relationship. Seven other embryos were created at that time. It was agreed in writing that the other embryos were under B’s legal care. A and B discussed having other children using the embryos but communication broke down with no agreement made.

Following Y’s birth, A applied for wardship and a parental order. A subsequently sought to withdraw the applications. All parties were in agreement that A should be given leave to withdraw.

Issues

On what basis should A be granted leave to withdraw her applications?

A sought to withdraw on the limited basis that the surrogate and her husband did not consent to the making of the parental order.

Other parties sought for the court to consider the other HFEA 2008 s54 criteria, submitting that A could not meet the criteria and Y’s welfare required consideration of the wider canvas.

Held

Leave to withdraw the applications was granted.

Irrespective of the issue of consent, A’s application for a parental order lacked both merit and legal foundation in key respects. A had failed to demonstrate how she would meet the key section 54 criteria.

The circumstances surrounding conception of X and Y were very different, there was no agreement for A to be a parent to Y and she was not involved in the surrogacy arrangement.

Theis J was satisfied that Y’s welfare needs were met by A being given leave to withdraw the application on that wider basis, not just limited to the issue of consent.

The statutory framework provided a clear structure for wardship applications. It was clear that Y’s welfare needs were also met by A being granted leave to withdraw the wardship application.

AY and BY v ZX [2023] EWFC 39 (MacDonald J – 29 March 2023)

Here a same-sex married couple (the applicants) had twins via a private surrogacy arrangement with a friend acting as surrogate.

The first applicant acted as a sperm donor and the surrogate elected home insemination to become pregnant.

The applicants applied for parental orders following the birth of the twins. The Magistrates raised a concern that the arrangement may have fallen outside of the terms of HFEA 2008 s54.

Issues

Whether the court could make a parental order under HFEA 2008 s54 in circumstances where the insemination leading to the birth had not taken place at a licensed clinic.

Held

MacDonald J held that the court did have jurisdiction to make the parental orders. There was nothing on the face of section 54 that indicated there being a requirement that artificial insemination has to take place at a licensed clinic or that private surrogacy arrangements are excluded from the terms of section 54.

The UK Supreme Court had considered the operation of section 54 in Whittington Hospital NHS Trust v XX [2020] UKSC 14 and had not suggested that the artificial insemination must take place at a licensed clinic. Various guidance documents on surrogacy also supported this conclusion.

MacDonald J was further satisfied that it was in the best interests of each of the twins to grant the orders.