Factual and Procedural Background
The hearing concerned two principal issues: (1) the Applicant's request to withdraw her applications for wardship and a parental order, and (2) the Applicant's request for leave under section 10(9) of the Children Act 1989 to apply for a child arrangements order in relation to a child aged four months ("the Child"). The Applicant initiated proceedings against the Respondents, including the Respondent Father, a couple involved in a surrogacy arrangement in the United States, and the Child’s Children's Guardian.
The Child was born through a surrogacy arrangement between the Respondent Father and the couple, where the gestational surrogate was the wife of the male Respondent. The Child has been in the full-time care of the Respondent Father since birth. The Applicant and Respondent Father had previously co-parented an older child ("Sibling"), born after embryo transfer to the Applicant, following IVF treatment involving both parties’ gametes and a donor egg.
Following difficulties in their relationship and unsuccessful attempts to conceive a second child together, the Respondent Father pursued a surrogacy arrangement in the US as a single parent. The Applicant was not involved in this surrogacy arrangement and only became aware of it in August 2022. The Applicant subsequently issued applications for wardship and a parental order relating to the Child, seeking to have a parental role analogous to that held in relation to the Sibling.
The Respondents opposed the applications, citing statutory and legal impediments, including the lack of consent from the surrogate couple and the absence of a biological connection between the Applicant and the Child. The court previously considered these applications and directed further submissions and evidence, leading to the hearing at which these issues were addressed.
Legal Issues Presented
- Whether the Applicant should be permitted to withdraw her applications for wardship and a parental order, and on what legal basis.
- Whether the Applicant should be granted leave under section 10(9) of the Children Act 1989 to make an application for a child arrangements order in relation to the Child.
- Whether the statutory criteria under section 54 of the Human Fertilisation and Embryology Act 2008 for a parental order can be met by the Applicant in the circumstances of this case.
- Whether the court should consider a wider welfare-based analysis beyond the issue of consent in relation to the withdrawal of the parental order application.
Arguments of the Parties
Applicant's Arguments
- The Applicant sought to withdraw her applications for wardship and parental order on the limited basis that the surrogate couple did not consent to the parental order.
- She argued for leave to apply for a child arrangements order to secure a shared care arrangement and parental responsibility for the Child, based on her involvement in the Child’s conception process and her role as mother to the Sibling.
- The Applicant submitted that her connection to the Child was strong, being involved in the creation of embryos and co-parenting the Sibling, and that denying her role risked distorting the Child’s life story and identity.
- She contended that the statutory criteria for a parental order could be read down compatibly with the Human Rights Act 1998 and the European Convention on Human Rights to accommodate her application.
- The Applicant emphasised the emotional difficulties she experienced, including loss of fertility and distress regarding the surrogacy arrangement, and sought recognition of her role for the benefit of both children.
Respondent Father's Arguments
- The Respondent Father opposed the parental order and wardship applications, asserting they lacked legal foundation and did not comply with the statutory framework under the Children Act 1989 and the Human Fertilisation and Embryology Act 2008.
- He maintained that the Applicant did not meet the criteria for a parental order, including the requirement that intended parents live as partners in an enduring family relationship.
- The Respondent Father asserted that the Child was living with him alone and that the Applicant was not involved in the surrogacy arrangement or conception of the Child.
- He contended that the statutory provisions could not be read down to accommodate the Applicant’s claims, stressing the importance of legal certainty and the integrity of the statutory scheme.
- The Respondent Father highlighted that the surrogate couple did not consent to the parental order in favor of the Applicant, which was a statutory bar to the application.
Surrogate Couple's Arguments
- The surrogate couple opposed the withdrawal of the parental order application on the basis that consent was withheld and that the court should consider the wider welfare implications for the Child.
- They argued that permitting the withdrawal solely on the basis of lack of consent risked distorting the Child’s narrative and identity, potentially harming the Child’s welfare.
- They supported the Respondent Father’s position regarding the legal framework and the importance of respecting the surrogacy arrangement’s terms and the surrogate’s role.
Children's Guardian's Arguments
- The Children’s Guardian emphasized the differing circumstances of conception for the Sibling and the Child, noting that the Applicant was a parent to the Sibling but had no role in the Child’s conception or surrogacy arrangement.
- The Guardian highlighted the risks of delay and disruption to the Child’s life if the Applicant were granted leave to apply for child arrangements, particularly given the ongoing litigation and the Respondent Father’s full-time care responsibilities.
- The Guardian supported withdrawal of the wardship application and opposed the application for leave under section 10(9), recommending mediation and family therapy as appropriate methods to address any outstanding issues.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re NY (A Child) [2019] 2 FLR 1247 |
Exceptional use of inherent jurisdiction only where issues cannot be resolved under Children Act 1989. |
Supported the court's view that statutory framework should be preferred and inherent jurisdiction used only exceptionally. |
| Tameside MBC v AM [2012] EWHC 2472 (Fam) |
Courts must follow statutory provisions where Parliament has provided detailed schemes. |
Reinforced the court’s adherence to statutory frameworks over inherent jurisdiction. |
| K and T v Finland [2000] 2 FLR 79 |
Definition of family life under Article 8 ECHR requires close family ties with sufficient constancy and substance. |
Used to assess whether Convention rights engaged for reading down statutory provisions. |
| Lebbink v The Netherlands [2004] 2 FLR 463 |
Family life requires de facto family ties of sufficient constancy and substance. |
Applied in assessing Applicant's relationship with the Child for Article 8 engagement. |
| Ghaidan v Godin-Mendoza [2004] 2 AC 557 |
Guidelines for reading down legislation under section 3 Human Rights Act 1998 to ensure compatibility with Convention rights. |
Court found Applicant’s case failed to demonstrate compatibility with statutory scheme and Convention rights. |
| Re X (Parental Order; Death of Intended Parent Prior to Birth) [2020] 2 FLR 1326 |
Application of s54 HFEA 2008 criteria and Convention rights in parental order cases. |
Referenced in considering statutory criteria and reading down provisions. |
| Re B (A Child) [2012] EWCA Civ 737 |
Discretion in granting leave under s10(9) Children Act 1989 considering nature of application and risk of harm to child. |
Informed the court’s exercise of discretion in refusing leave to apply for child arrangements order. |
| Ciccone v Ritchie (No 2) [2017] 1 FLR 812 |
Consideration of child's welfare in applications to withdraw. |
Guided the court’s welfare-focused approach to the withdrawal application. |
| Re G; Re Z [2013] 1 FLR 1334 |
Limiting leave under s10(9) CA 1989 to applications for contact/time with child. |
Referenced as precedent for limiting scope of leave if granted. |
| Re C (Surrogacy: Consent) [2023] EWCA Civ 16 |
Legal effect of surrogate consent and parental order criteria. |
Supported the conclusion that lack of surrogate consent precludes parental order. |
Court's Reasoning and Analysis
The court began by distinguishing the different factual and legal circumstances surrounding the conception and parentage of the two children. The Sibling was conceived through a joint arrangement with the Applicant and Respondent Father both intending to parent, with the Applicant carrying the child. By contrast, the Child was conceived via a surrogacy arrangement involving the Respondent Father and the surrogate couple alone, without the Applicant's involvement or consent.
The court emphasized the statutory framework governing parental orders under section 54 of the Human Fertilisation and Embryology Act 2008, noting the strict criteria, including the requirement for consent from the surrogate and that intended parents live as partners in an enduring family relationship. The Applicant did not meet these criteria, particularly lacking a biological connection to the Child and no enduring relationship with the Respondent Father at the time of conception.
The court rejected the Applicant's submission that the statutory provisions could be read down under section 3 of the Human Rights Act 1998 to grant her parental status, finding no sufficient engagement of Convention rights under Article 8 in the absence of biological or gestational ties, or evidence of enduring family life with the Child.
Regarding the withdrawal of the parental order and wardship applications, the court agreed that withdrawal was appropriate but only on a broader legal basis beyond the surrogate couple’s lack of consent, given the lack of merit and legal foundation in the Applicant’s case.
The court further considered the Applicant’s application for leave under section 10(9) of the Children Act 1989 to apply for a child arrangements order. It found the application unrealistic and likely to cause delay and disruption to the Child’s life, given the distinct legal status of the Child and the ongoing litigation. The court recognized the Applicant’s connection to the Child was primarily through the sibling relationship rather than direct parental ties.
The court noted the importance of mediation and family therapy to address outstanding relational issues and emphasized the need to respect the statutory scheme and the welfare of the Child and Respondent Father, who is the Child’s full-time carer.
Holding and Implications
The court GRANTED the Applicant permission to withdraw her applications for wardship and a parental order.
The court REFUSED the Applicant's application for leave under section 10(9) of the Children Act 1989 to make an application for a child arrangements order in relation to the Child.
This decision confirms the strict application of the statutory criteria for parental orders under the Human Fertilisation and Embryology Act 2008 and underscores the limited circumstances in which the court will read down these provisions to accommodate non-biological parents. The ruling emphasizes the primacy of the welfare of the child and the importance of legal certainty in parentage matters. The refusal of leave to apply for child arrangements reflects concerns about potential disruption and delay in the Child’s life, given the absence of a direct parental relationship with the Applicant.
No new legal precedent was established; rather, the court reinforced existing principles concerning surrogacy, parental orders, and applications under the Children Act 1989.