B e f o r e :
MR JUSTICE KEEHAN ____________________
____________________
MR A POWELL & MS L LOGAN GREEN (instructed by JMW Solicitors LLP) for the 1st Applicant MS M-L SAVAGE & MR S LUE (instructed by Freemans Solicitors) for the 2nd Applicant MR T HARRILL (instructed by Mills & Reeve LLP) for the 1st Respondent MR M KINGERLEY QC (instructed by Mander Cruickshank Solicitors) for the 2nd Respondent Hearing date: 7th May ____________________
HTML VERSION OF JUDGMENT APPROVED ____________________
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Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be at 10.30am on Monday 22 nd June 2020.
The Hon. Mr Justice Keehan :
Introduction
In these proceedings I am concerned with one child A who was born in February 2017 and is 3 years of age. His biological mother is M ('the mother'), the First Applicant, and his biological father is F ('the father'), the Second Applicant.
A was born as a result of a surrogacy agreement in which his mother's and father's gametes were used. The surrogate mother is SM, the First Respondent.
Shortly after A's birth the mother made an application for him to be made a ward of court. On 28 February 2017 HHJ George confirmed the wardship, granted care and control of A to the mother and made an order preventing the father from removing A from his mother's care.
In July 2017 the mother made an application for a parental order as a single parent: the surrogate mother and the father were respondents to this application. This was before the amendment of the Human Embryology and Fertilisation Act 2008 ('the 2008 Act') to permit applications by a single applicant and, therefore, on 1 August 2017 the application was stayed. After the provisions of s.54A of the 2008 Act came into effect the stay was lifted on 11 September 2019.
On 16 December 2019 the mother and the father made a joint application for a parental order.
All parties are agreed that it is manifestly in A's welfare best interests to be made the subject of a parental order in favour of the mother and the father.
Background
The father has two older children from a previous relationship.
The mother and the father began their relationship in 2011. They wished to start a family but for medical reasons the mother could not conceive naturally. After a cycle of IVF treatment was unsuccessful, they entered into a surrogacy arrangement with SM. It was agreed she would not receive any payment for being the surrogate but that she would receive her reasonable expenses.
In April 2015 the mother and the father entered into an agreement with a fertility clinic. An embryo was created using their gametes.
In early 2016 the parents separated for what was then intended to be for a trial period.
On 29 May 2016 the embryo was transplanted into SM and the pregnancy was confirmed on 9 June 2016.
By late June 2016 the parents finally separated. Thereafter, the father had minimal involvement in the pregnancy.
A was born on 18 February 2017 and he was placed in the care of the mother. On 22 February she made an application for A to be made a ward of court and, as I have noted, on 28 February HHJ George confirmed the wardship. In a recital to the order it was noted that the father had written a letter in which he had stated that he had no wish to be involved in the proceedings nor to play any part in the upbringing of A. The proceedings were then re-allocated to me.
At a hearing on 12 April 2017 I confirmed the above orders, made A a party to the proceedings and appointed a r. 16.4 guardian to represent him.
In July 2017 the mother made an application for a parental order. On 1 August 2017 HHJ Handley stayed this application with liberty granted to any party to apply for the stay to be lifted.
On 3 January 2019 the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 came into force and introduced s.54A into the Human Fertilisation and Embryology Act 2008 ('the 2008 Act') which permitted applications for a parental order to be made by one applicant.
In consequence, on 21 June 2019 the mother applied for the stay to be lifted and on 11 September 2019 HHJ George lifted the stay and gave case management directions.
Thereafter, the father changed his position and indicated that he wished to have contact with A and that he did not wish to relinquish his legal parenthood. The matter was listed for a further directions hearing before me on 16 December 2019. At this hearing the mother and the father made a joint application for a parental order. The mother's sole application for a parental order was, once again, stayed pending the court's determination of the joint application and I gave case management directions leading to this hearing before me on 7 May 2020. At this time the father was having indirect contact with A and I gave directions for the guardian to consider whether and, if so, how contact between the father and A could progress to direct contact, be that supervised or unsupervised.
The Law
The statutory criteria for the making of a parental order on the application of two people are set out in s.54 of the 2008 Act which provides that:
The factual matrix of this case, therefore, presents three legal issues in respect of the application for a parental order made by the parents:
i) the application was made outside of the 6-month time limit (s.54(3));
ii) the child's home at the time of the application and upon the making of any parental order will not be the same home as both parents because they are separated (s.54(4)(a)); and
iii) whether, at the time of the application, the mother and the father could be found to be "two persons who are living as partners in an enduring family relationship" (s.54(2)(c))?
In respect of the court's approach to statutory interpretation, I was helpfully referred by counsel to a number of leading authorities. In the case of Howard v. Boddington (1872) 2 PD 203, Lord Penzance observed:
In the case of Dharmaraj v. Hounslow London Borough Council [2011] EWCA Civ 312 , Toulson LJ, as he then was, said that:
Sir Stanley Burnton observed in the case of Newbold & Others v. Coal Authority [2013] EWCA Civ 584 , [2014] 1 WLR 1288 , that:
In Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) the former President, Sir James Munby, referred to the Court of Appeal decision of Khakh v. Independent safeguarding Authority [2013] EWCA Civ 1341 and observed:
The introduction of the Human Rights Act 1998 ('the 1998 Act') had a significant impact on the statutory interpretation of legislation. By s.3 of the act it is provided that:
The impact of this provision of the 1998 Act was considered by the House of Lords in the case of Ghaidan v. Godin-Mendoza [2004] 2 AC 557 . Lord Nicholls opined:
In the same case Lord Steyn observed:
When a court is considering 'reading down' a provision of a statute the court must have regard to the purpose of the provision and to the intentions of Parliament. In the case of Re X (above) the former President expressed the exercise which the court must undertake in the following terms at paragraph 52:
When undertaking this exercise in the case of A v. P (Surrogacy; Parental Order: Death of Applicant) [2011] EWHC 1738 (Fam) Theis J. noted that:
In the case Re X [2020] EWFC 39 , in which the judgment was handed down after I had heard submissions in this case, Theis J made the following observations, at paragraphs 85 & 86:
Later in her judgment at paragraphs 93-95 Theis J concluded as follows:
I make no apology for the length of the quotation from this judgment in which, in my respectful view, Theis J has succinctly but comprehensively set out (i) the reasons why a court may 'read down' the statutory criteria of s.54; (ii) the justification for doing so and (iii) the adverse consequences for the child and for the applicants if the court did not make a parental order.
The Submissions
I am immensely grateful to leading and to junior counsel for their comprehensive written submissions which I found invaluable in formulating my analysis in this case and in coming to a decision on the parental order application.
A six-month time limit for the making of a parental order application after the birth of the child is one of the statutory criteria for the making of an order: s.54(3) of the 2008 Act. In this case an application should have been made no later than 17 August 2017. The joint application for a parental order was not made until 16 December 2019, some 2 years and 4 months after the expiry of the statutory time limit.
All counsel relied on and referred me to the decision of the former President, Sir James Munby, in Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 . At paragraphs 54-58 of the judgment he observed that:
Later in the judgment, Sir James Munby concluded as follows:
Whilst accepting that each case is fact specific, Mr Powell & Ms Logan Green, for the mother, submitted that where a court is being invited to read down s.54(3), or indeed any of the s.54 criteria, the ratio in Re X can be distilled into 8 key principles to which the court must have regard:
At the time the application for a parental order was made and at the time of the making of a parental order can it be determined on the facts of this case that A's 'home' was and is with his separated parents: s.54(4)(a)?
Mr. Powell and Ms Logan Green submitted that a 'family tie' plainly exists between both of the parents and A. They referred me to the decision of the ECtHR in Kroon v. The Netherlands 19 EHRR 263 , [1995] 2 FCR 28 where the court observed:
and that
The concept of 'family life' was further considered by Munby J, as he then was, in Singh v. Entry Clearance Officer New Delhi [2004] EWCA Civ 1075 when he said a paragraph 59:
And later at paragraph 72 he observed:
I respectfully agree.
This theme was developed by Theis J. in A v. P (above) when she said at paragraph 30:
Subsequently, in the case of A & B (No.2 – Parental Order) [2015] EWHC 2080 (Fam) Theis J. observed:
More recently in the case of AB (Foreign Surrogacy – Children Out of the Jurisdiction) [2019] EWFC 22 Theis J. said at paragraphs 41-43 of her judgment:
I respectfully agree with all Theis J has said.
Can the court be satisfied that, at the time of the application, the mother and the father were "two persons who are living as partners in an enduring family relationship" (s.54(2)(c))?
This question was considered by Hedley J, as he then was, in T & M v. OCC & C [2010] EWHC 964 at paragraph 16 when he noted:
In the case of Re F & M (Children) (Thai Surrogacy) (Enduring Family Relationship) [2016] EWHC 1594 (Fam) , Russell J concluded that Parliament had intended that the court determine what was an 'enduring family relationship'.
Further, as Mr. Kingerley QC submitted, in the case of Re P and B v. Z [2017] 2 FLR 168 , at paragraphs 22-28, Russell J referred to the record in Hansard of the speech of the then Minister of State for Public Health, Dr Primarolo, when she said:
Ms Savage and Mr Lue referred me to the case of Re N (Surrogacy: Enduring Family Relationships: Child's Home) [2019] EWFC 21 where at paragraph 34 Theis J observed:
And later at paragraph 37 she said:
In the absence of a parental order, I considered the alternative routes of securing the legal relationship between the parents and the child in M v. F, SM [2017] EWHC 2176 (Fam) at paragraph 18:
Analysis
In light of the various authorities set out above I must apply the following principles when considering whether or not the statutory criteria are satisfied on the facts of this case and whether I should make a parental order in favour of the applicants:
i) when interpreting legislative provisions, the court must have regard to the underlying purpose of the requirement and ensure the interpretation does not 'go against the grain' of the intentions of Parliament;
ii) s.3 of the HRA requires the court, where possible, to give a Convention compliant interpretation of statutory provisions;
iii) a failure to adhere to the six-month time limit to make an application for a parental order is not fatal to the making of the order;
iv) the questions whether the applicants are in an enduring family relationship and whether the child has his home with the applicants are matters of fact for the court to determine;
v) where the court finds that the Article 8 and/or Article 14 rights of the child are engaged, the biological and social reality of the child's life must prevail over legal presumption;
vi) the existence of family life is not defined nor is its existence constrained by legal, societal or religious conventions;
vii) there are no minimum requirements that must be shown if family life is to be held to exist;
viii) what is required is an unambiguous intention to create and maintain family life, and secondly, a factual matrix consistent with that intention which is clearly a question of fact and degree;
ix) the mere fact that the parents are now separated is not fatal to the application for a parental order;
x) similarly, the mere fact that the parents live in separate homes is not fatal to the application;
xi) if a parental order is not made, the child is likely to be denied the social and emotional benefits of recognition of his relationship with his parents and would not have the legal reality that matches his day to day reality;
xii) the transformative effect of a parental order cannot be overstated; and
xiii) the ultimate test for the making of a parental order is the welfare best interests of the child.
I consider the following factors to be of crucial significance when deciding whether the statutory criteria are met in this case:
i) prior to the surrogacy arrangement the mother and father were in an enduring relationship;
ii) they wished to have a family and desperately wanted a child of their own;
iii) they agreed to pursue a surrogacy arrangement and each provided their gametes to produce embryos for transplantation into the surrogate mother;
iv) A has spent his entire life in the care of the mother;
v) at the time of the joint application in December 2019, both the mother and the father were committed to play key roles in A's life and both were committed to his care and well-being;
vi) at the time of the application both the mother and the father had and/or wished to have a close and loving relationship with A;
vii) they were and are committed to work together to promote the welfare best interests of A throughout his minority and beyond; and
viii) the mother and the father wished to have their biological status as A's parents to be recognised in law.
I am satisfied that the fact that this joint application for a parental order was made over 2 years after the time limit prescribed by s.54(3) is not a bar to the court making a parental order. To find to the contrary would be nonsensical and would deprive A of the enormous benefits of a parental order.
The mother and the father are committed to A's welfare and future care in which both are agreed they should play an active role. I am satisfied that A has a 'family life' with both of his parents. Accordingly, I am satisfied that his Art 8 and Art 14 rights are engaged. In light of their agreement and commitment to A, I am also satisfied that the parents are in an enduring family relationship.
The term 'home' must be given a wide and purposive interpretation. The authorities make clear that the term is not and should not be restricted to cases where the applicants live together under the same roof. It is the plain intention of the parents that A will be cared for by both of them, albeit not necessarily, and not at present, on the basis of an equal shared care arrangement. Giving a wide and purposive interpretation of the word 'home', I am satisfied that A has his 'home' with the mother and the father.
The father's indirect contact is progressing to direct contact and, in due course, to staying contact. In the premises I shall focus on the parents' agreement in respect of the future care arrangements for A and their joint commitment to be fully involved in his life. I consider that in doing so I am acting in compliance with A's Art 8 and Art 14 rights.
Conclusion
A parental made in favour of the mother and the father in respect of A is the only order which will in law recognise them as his parents.
The transformative effect of making this order for A cannot be overstated. It is fundamental to his identity and status for the whole of his life.
For the reasons given above and reading the provisions of s.54 in a purposive and Convention compliant manner, I am satisfied that statutory requirements are met on the facts of this case.
It is overwhelmingly in the welfare best interests of A that he is made the subject of a parental order.
I, therefore, make a parental order in respect of A in favour of the mother and of the father.