Authored By: Hayley Smyth
The Open University
Case Name: X v Z (Parental Order: Adult) [2022] FC 26
Court: Family Court, Royal Courts of Justice, London.
Date of Judgement: 5 April 2022
Introduction
The case of X v Z1 is a novel case surrounding a surrogacy arrangement that took place in 1998 in the United States (US). It is the first case where the applicants have applied for a parental order to establish that they are the legal parents of an adult child in England and Wales. This summary examines the Human Fertilisation and Embryology Act 20082 (HFEA 2008), how the judge applied this Act and relevant case law, and the legal implications of the judgment for families in England and Wales. The parties involved are Mr and Mrs X (applicants), Mr and Mrs Z (respondents), and Y (3rd respondent).
Facts of the Case
Mr and Mrs X’s (the applicants) son, Y, was born following a surrogacy arrangement through a surrogacy agency in the US, which introduced them to Mr and Mrs Z (the respondents). An embryo was transferred to Mrs Z, which contained the gametes of both Mr and Mrs X.
Mr and Mrs X were able to become the legal parents of their son in the US via a pre-birth legal process conducted in Los Angeles, and the Superior Court of California made an order that declared Mr and Mrs X as Y’s legal parents in 1998. Their names were on Y’s US birth certificate, and they are Y’s biological parents; however, they were never informed of their legal status in the UK, nor about the parental order process. All three of them travelled back to the UK a few days after Y’s birth, and Mr and Mrs X have made every decision regarding Y’s welfare and care since Y was born.
In September 2021, Mrs Z contacted Mrs X to inform her that she had been involved in parental order proceedings with another British couple in the UK, for whom she had been a surrogate. Naturally, this shocked Y’s parents, as they were unaware that the law in England and Wales did not recognise them as Y’s legal parents. Therefore, Mr. and Mrs. X issued an application in December 2021, and Mr. and Mrs. Z consented to the court making a parental order.
Legal Issues Raised
- Were the Section 54 criteria of the HFEA 2008 met?
- Could a parental order be made for an adult child?
- Having regard to Section 1 of the Adoption and Children Act 2002 (ACA 2002)3, if the applicants met all of the Section 54 criteria, would making an order meet Y’s lifelong needs?
- Did Parliament intend the potential injustice that would arise from not making an order?
Arguments of the Parties
Both parties submitted that that the Section 54 criteria are all met, except for the fact that Y is now an adult, the delay in making the application is outside of the within six months of the child’s birth limit in Section 54(3), and the issue of whether the child’s home is with the applicants at the time of the application and at the time of the court considering the case which is set out in Section 54(4)(a). Both parties also argued that there is no provision in the HFEA 2008 preventing a parental order from being made for an adult child, echoing what was set out in Re X (A child) [2014]4. Although the HFEA 2008 and Part 13 of the Family Procedure Rules5 were set out to expect applications relating to children, there are no express provisions excluding orders relating to adult children. Furthermore, they submitted that there is nothing proving that there was a reason to believe Parliament foresaw or intended the injustice resulting if a parental order could not be made by the court.
The parties also submitted that convention rights are engaged in this case, the first being Article 8 (1), which protects the right to respect for private and family life. These rights are set out by the Human Rights Act 19986 (HRA 1998), which entrenched the European Convention on Human Rights7. In relation to this, the decision in Re X (A child) [2014] alongside A v P [2011]8, emphasises that if a narrow reading of the Section 54 criteria would not allow the court to make a parental order and the outcome would infringe upon Convention rights, the court should conduct a purposive approach of the legislation being considered in order to protect the rights that are being engaged. Combined with this, Section 3 of the HRA 1998 requires the court to read legislation in a way so that it is compatible with any Convention rights engaged within a case. It was also submitted that in Re X (A child) [2014], it was stated that any application for a parental order to be made implicates both the right to a family life and a private life, which are protected convention rights, and so they are engaged in this case. Article 14 protects the fact that all of the rights set out by the Convention shall exist without discrimination, and the parties submitted that these rights are engaged because the prevention of a parental order would mean that his parents would not be recognised as his legal parents by “virtue of the circumstances of his birth through surrogacy”.
Judgement
The court decided to make a parental order in favour of Mr and Mrs X.
Legal Reasoning/ Ratio Decidendi
Regarding the Section 54 criteria, the court accepted that in the circumstances, the criteria had been satisfied, and it went on to discuss the parts of the criteria that were in question. For Section 54(4)(a), the court recognised that Y had lived with Mr and Mrs X throughout his childhood and remained in close contact with them. The court referred to AB [2019], which stated that the court should take a ‘broad and purposeful interpretation’ of the meaning of home. Therefore, when taking a broad and purposeful interpretation of the requirement of ‘home with’, the requirement is satisfied because Mr. and Mrs. X, and Y have remained as a family unit and their lives are entwined. Regarding the time limit in Section 54(3), the decision to extend the time limit is one permitted by statutory interpretation, as decided in Re X (A child) [2014]. This is subject to whether the circumstances in a case justify an order being made outside of the six-month time limit. In this instance, the court identified that the circumstances justified an order being made outside of the time limit because neither of the parties were aware of the need for a parental order in this jurisdiction, as they had already received a pre-birth order in the US. Instead, they promptly made an application for a parental order once they were aware of the necessity of one being made.
Regarding Y’s rights, the court stated that making an order would solidify his rights to family life as well as his identity rights as Mr and Mrs X’s child. The court was satisfied that the HFEA 2008 should be interpreted in a way to recognise the Article 8 rights of Mr and Mrs X and Y, and in further instances. In relation to Y now being an adult, the court said that the HFEA 2008 does not limit applications for a parental order being made for only children, and it also picked up on the fact that no other case has limited this either, nor any other information surrounding this legislation.
Conclusion/ Observations
Had a parental order not been made, it would have had lasting consequences for Y’s inheritance rights as a child of his parents, and it would have deprived him of his identity rights regarding his parentage.
This case is important on a national scale because there may be many more parents who do not realise that they must obtain a parental order in this jurisdiction if their child was born through an international surrogacy, especially if they had already been through a similar parental order process wherever the surrogacy arrangement took place. This is exceptionally important for parents who have had adult children through surrogacy but have not obtained a parental order, as it may urge them to make an application promptly. Therefore, this could result in many more parental orders to follow, which will ensure security for many family units and allow them to never be legally challenged over who is a legal parent, which is significant in cases involving children under the age of 18. This case also further highlights the importance of obtaining a parental order when becoming a party to a surrogacy arrangement, and how parental orders are still crucial even when the child is an adult.
Reference(S):
1X v Z (Parental Order) [2022] EWFC 26
2Human Fertilisation and Embryology Act 2008
3Adoption and Children Act 2002
4Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam)
5The Family Procedure Rules 2010
6Human Rights Act 1998
7European Convention on Human Rights
8A v P (Surrogacy: Parental Order: Death of Applicant) [2011] EWHC 1738 (Fam)
