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 applicants) had separated for a short time.
Held: The time limit might be extended.
Sir James Munby said: ‘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 Xs 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.’
Given the importance of the issue for the child, the court is bound to adopt a more lenient approach than in Adesina.
Judges:
Sir James Munby P FD
Citations:
[2014] EWHC 3135 (Fam), [2015] 1 Fam 186, [2015] 2 WLR 745, [2015] 1 FLR 349, [2014] Fam Law 1681, [2014] WLR(D) 410, [2015] 1 FAM 186
Links:
Statutes:
Human Fertilisation and Embryology Act 2008 54(1)(c)
Jurisdiction:
England and Wales
Citing:
Cited – Howard v Bodington Carc 27-Feb-1877
Imperative or Directory Statutory Requirements
The court considered the consequences of a failure to comply with a statutory requirement.
Held: The distinction drawn between statutory requirements which were ‘imperative’ on the one hand and ‘directory’ on the other involved unfortunate use . .
Cited – In re X and Y (Foreign Surrogacy) FD 9-Dec-2008
The court considered the approval required for an order under the 2002 Act.
Held: Welfare considerations were important but not paramount: ‘Given the permanent nature of the order under s.30, it seems reasonable that the court should adopt the . .
Cited – In Re S (Parental Order) FD 2009
Hedley J considered a Californian surrogacy arrangement in which USD $23,000 was paid.
Held: Hedley J considered the issue of authorisation in respect of a payment for a commercial surrogacy arrangement and set out further the approach the . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
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 – Dharmaraj v London Borough of Hounslow CA 24-Jan-2011
The claimant challenged the respondent’s finding that he had been intentionally homeless and therefore not entitled to emergency housing assistance. He said that the Authority had failed to comply with the required procedure.
Held: Toulson LJ . .
Cited – A v P (Surrogacy: Parental Order: Death of Applicant) FD 8-Jul-2011
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. . .
Cited – G v G (Parental Order; Revocation) FD 11-May-2012
The commissioning father of a child born through a surrogacy agreement made an application for the revocation of a parental order on the grounds that, first, the order had been wrongly made by reason of numerous procedural defects and, secondly, it . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Distinguished – Adesina and Others, Regina (on The Application of) v The Nursing and Midwifery Council CA 9-Jul-2013
The court was asked as to the effect of a statutory provision stating that an appeal to the High Court from the Nursing and Midwifery Council ‘must be brought before the end’ of a specified period of 28 days. There was no express provision . .
Cited – In re A and B (Parental Order: Domicile) FD 14-Feb-2013
. .
Cited – J v G FD 26-Mar-2013
Application for a parental order under the 2008 Act following a surrogacy arrangement in California, USA using IVF. . .
Cited – Re C (A Child), AB v DE FD 15-May-2013
Application for a parental order in relation to a child C born in 2012 under section 54 of the 2008 Act 2008. A parental order had been made, and the judge now gave his reasons. C was conceived through IVF treatment in Moscow, with the First . .
Cited – Newbold and Others v The Coal Authority CA 23-May-2013
Appeal by the Coal Authority against an order declaring that notices of subsidence damage were valid damage notices for the purposes of section 3 of the 1991 Act.
Held: Sir Stanley Burnton said: ‘In all cases, one must first construe the . .
Cited – Khakh v Independent Safeguarding Authority CA 6-Nov-2013
The 2006 Act provided that the judge in the Crown Court ‘must inform the person at the time he is convicted’ that his name would be included on the statutory barring lists. The judge had failed to do so. The claimant objjcted to the inclusion of his . .
Cited – In re WT (A Child) FD 4-Mar-2014
Theis J said: ‘A parental order application has to be made within six months of the child’s birth. There is no power vested in the court to extend that period.’ . .
Cited – JP v LP and Others FD 5-Mar-2014
Applications were made for orders under section 8 after and informal surrogacy arrangement. The child was now 33 weeks old.
Held: King J said: ‘When the matter came before the High Court it was agreed by all parties . . s54(3) says that the . .
Cited – Kroon And Others v The Netherlands ECHR 27-Oct-1994
Neither marriage nor living together were necessarily a requirement for establishing family ties, exceptionally other factors may . . serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’. The . .
Cited – Re J (Adoption: Non-Patrial) CA 1998
The court considered an adoption in Pakistan which was valid in Pakistan but would not be recognised here. The natural father and the adoptive father were from the same family. The adoptive parents were unable to have a children of their own, and . .
Cited by:
Cited – In re D (a Child) FD 31-Oct-2014
The two parents sought to challenge a decision that their child should be taken into care. Each parent had learning difficulties, but their income though small precluded the grant of legal aid. They wished to appeal against final care orders, but . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.
Children
Leading Case
Updated: 11 October 2022; Ref: scu.537335