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Re A (surrogacy: s 54 criteria); M v F and others [2020] EWHC 1426 (Fam) – Parental order made in favour of separated parents

Posted on 14 September 2020

The mother and father had been in a relationship since 2011. They wanted to start a family, but could not conceive naturally. They entered into a surrogacy arrangement and in 2015 entered into an agreement with a fertility clinic. An embryo was created using their gametes and transplanted into the surrogate. However, the parents separated during the pregnancy. Upon the child being born, he was placed into the care of the mother. She applied for the child to be made a ward of court. At that time, the father had indicated that he had no wish to be involved in the proceedings, nor to play any part in the child's upbringing. The mother made an application for a parental order in July 2017, at which time it was not possible for a parental order to be made in favour of a single applicant. Her application was stayed. The law changed on 3 January 2019, permitting applications for a parental order by one applicant. The mother applied for the stay to be lifted and for a parental order. By that time, the father had changed his position. He was having contact with the child and also wished to have a parental order. By the hearing, the parties were agreed that they wished to have a joint parental order made in favour of both of them.

The law requires that the applicants for a joint parental order must be be:

  • husband and wife,
  • civil partners of each other, or
  • two persons who are living as partners in an enduring family relationship

Further, at the time of making the order, the child's home must be with the applicants.

Keehan J made a joint parental order, despite the parties being separated. He noted that, when interpreting legislative provisions, the court must have regard to the underlying purpose of the requirement. 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. The existence of family life is not defined, nor is its existence constrained by legal, societal or religious conventions. What was required was an unambiguous intention to create and maintain family life, and secondly, a factual matrix consistent with that intention. The mere fact that the parents are now separated is not fatal to the application for a parental order, nor was the fact that they lived in separate homes. He noted the social and emotional benefits of a parental order and that, without one, the child would not have the legal reality that matches his day to day reality. Ultimately, the test was the welfare best interests of the child.

Although the parents lived apart, they were both committed to his welfare and future care and both intended to play an active role in it. The child had a family life with each parent and his Article 8 and 14 rights were engaged. The parents were in an enduring family relationship, even if living separately. The child had a home with each of them.

Emma Willing says: "In making a parental order in favour of separated parents, Mr Justice Keehan recognised it to be the only order which would recognise the parties in law as the child's parents - something he considered fundamental to the child's identity and status. In doing so, the Court adopted a purposive interpretation to Section 54 Human Fertilisation and Embryology Act 2008 (Section 54) in order to ensure it was applied in an ECHR compliant manner. The case demonstrates yet again the creative manner in which the Courts have been required to interpret Section 54 in making a Parental Order, particularly in circumstances in which it is overwhelmingly in a child's best interests to do so."

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