M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. The father had since died of liver cancer. The court considered whether the legislation should be construed purposively to allow the application to proceed, allowing one parent to proceed where the statute explicitly required two.
Held: The application succeeded. The court was free to interporet the section so as to allow the court to be satisfied that the relevant requirements were met. Among other reasons, Article 8 rights were involved and any interference must be proportionate, and the reading would not offend any policy purpose in the legislation, but would rather clearly reflect the child’s best interests. The payments were relatively modest, they were in excess of what would be accpted her. However it remained appropriate to make the parental order.
‘The primary aim of s 54 of the HFEA 2008 is to allow an order to be made which has a transformative effect on the legal relationship between the child and the applicants. The effect of the order is that the child is treated as though born to the applicants. It has clear implications as regards the right to respect for family life under Art 8 of the European Convention. Family life exists in this case as the child has lived with both Mr and Mrs A. The child is biologically related to Mr A and perhaps Mrs A. The effect of not making an order will be an interference with that family life in that the factual relationship will not be recognised by law. The court’s responsibility to ‘guarantee not rights that are theoretical and illusory but rights that are practical and effective’ Marckx v Belgium (1979-) 2 EHRR 330, at para 31.
A further relevant consideration is that family life is not only a matter of fact and degree but also the significance of legal relationships. In this case if an order is not made there is no legal connection between the child and his deceased biological father. Protection of the right to family life pre-supposes the factual existence of family life (Pini and Bertani; Manera and Atripalidi v Romania (2005) 40 EHRR 13, [2005] 2 FLR 596, at para 143). Once that is established (and it is in this case) the state must facilitate and protect that right.
The consequences of not making an order in this case are as follows:
(i) there is no legal relationship between the child and his biological father who is also the commissioning father;
(ii) the child is denied the social and emotional benefits of recognition of that relationship;
(iii) the child may be financially disadvantaged if he is not recognised legally as the child of his father (in terms of inheritance);
(iv) the child does not have a legal reality which matches the day-to-day reality;
(v) the child is further disadvantaged by the death of his biological father.’
Theis DBE J
[2011] EWHC 1738 (Fam)
Bailii
Human Fertilisation and Embryology Act 2008 54, Law Reform (Miscellaneous Provisions) Act 1934 1(1), Human Fertilisation and Embryology Act 2008 (Parental Orders) (Consequential, Transitional and Saving Provision) Order 2010, Adoption and Children Act 2002 1, European Convention on Human Rights 8, United Nations Convention of the Rights of the Child 8
England and Wales
Citing:
Distinguished – D’Este v D’Este; D(J) v D(S) FD 1973
The husband had obtained a decree absolute of divorce against his wife. The matrimonial home had been conveyed to them jointly. He remarried and applied to the court for variation of the post-nuptial settlement. He died before the application was . .
Cited – Cases of Pini And Bertani And Manera And Atripaldi v Romania ECHR 22-Jun-2004
The making of an adoption order was sufficient to establish an Article 8 right to respect for family life notwithstanding the fact that the children had never moved to live with the adopters. Protection of the right to family life pre-supposes the . .
Cited – Re IJ (A Child) (Foreign Surrogacy Agreement Parental Order) FD 19-Apr-2011
ij_FD11
The court gave reasons for making a parental order under the 2008 Act in favour of the applicants where a child had been born under surrogacy arrangements which were lawful in the Ukraine where he was born, but would have been unlawful here because . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – In Re WM (Adoption: Non-Patrial) FD 1997
The court considered whether it was possible to make an adoption order notwithstanding that the applicants had separated as a couple.
Held: In making the order the court took into account the following: (a) the advantage to the child of . .
Cited – In re L (A Minor) (Commercial Surrogacy) FD 8-Dec-2010
The child had been born in Illinois as a result of a commercial surrogacy arrangement which would have been unlawful here. The parents applied for a parental order under the 2008 Act.
Held: The order was made, but in doing so he court had to . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – M v W (declaration of parentage) FD 2007
The court made a declaration of parentage where the legal parentage differs from the biological parentage of a child, in this case, where the child was subsequently adopted but wished to have acknowledgement of their ‘natural’ or biological . .
Cited – Cases of Pini And Bertani And Manera And Atripaldi v Romania ECHR 22-Jun-2004
The making of an adoption order was sufficient to establish an Article 8 right to respect for family life notwithstanding the fact that the children had never moved to live with the adopters. Protection of the right to family life pre-supposes the . .
Cited by:
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Lists of cited by and citing cases may be incomplete.
Children, Human Rights
Leading Case
Updated: 02 November 2021; Ref: scu.441892