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Re X, Y and Z (Children-Parental orders- time-limit) [2022] EWHC 198 (Fam)

Mrs Justice Knowles exercised her discretion to make parental orders under s54 of the Human Fertilisation and Embryology Act 2008 in respect of three children despite the applications being made well outside the statutory 6 month time-limit.

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Background

The applicants are a married couple, TT a British citizen in his 40s and RR a Danish citizen in his 50s. The respondents are Mr and Mrs HH and Mr and Mrs JJ, who are all US citizens. Mrs HH was the surrogate who gave birth to X, a girl, and Y, a boy who are twins, now aged four. Mrs JJ was the surrogate for Z, a girl, who is now two years old.

The applicants, who were resident in Denmark, decided to pursue surrogacy in the USA, attracted by the regulatory framework which provides for legal certainty as to parentage in that jurisdiction at the time of the child's birth. They engaged an established agency and were matched with a married surrogate, HH from Oregon; embryos were created using TT's sperm and eggs from an anonymous donor and two transferred into HH's uterus. The twins were born prematurely and cared for by the applicants while they remained in hospital. A declaratory judgment was obtained in Oregon, recognising the applicants as the twins' legal parents. X and Y hold US citizenship. The applicants returned to Denmark with the twins; they had been advised that the twins were entitled to Danish citizenship through RR's parentage and without raising any difficulty the Danish authorities provided X and Y with Danish passports and confirmed their Danish citizenship.

About a year after the twins were born the applicants decided to have a third child by surrogacy. They used a surrogate, JJ, in California and again TT's sperm and a donor egg was used. TT was present when Z was born at full term. RR joined them with X and Y and the family of five returned to Denmark once Z's US passport had been issued. The applicants were recognised as her parents under Californian law pursuant to a pre-birth order.

When the applicants tried to register Z as a Danish citizen in 2019 they were told that Danish law did not recognise the parentage bestowed on them under Danish law; not only was Z not granted Danish citizenship but that of X and Y was rescinded. The Danish authorities put the applicants on notice that they were considering the deportation of all three children. Fortunately the applicants were able to register the children as British citizens on 16th December 2020 so that they acquired permanent residence in Denmark just before the UK left the EU on 31st December. Subsequently, after a decision in the Danish Family Court, the children's births were re-registered showing TT as their father and the respective surrogates as their mothers.

The applicants had not been aware of the existence of parental orders in this jurisdiction until the issues arose with the Danish authorities. As soon as they realised that they needed to do so, they applied for the orders.

Partly because of the difficulties about the children's residency entitlement and the lack of legal recognition of their parentage, and partly because TT was the victim of a homophobic attack, the applicants relocated to the UK in October 2021, TT thus resuming his domicile of origin.

The parental order reporter produced comprehensive and very positive reports about the applicants and recommended that parental orders be granted.

The s54 criteria

All the criteria were met save for the time limit at s54(3).
The court carefully considered the payments made to the surrogates and considered them to be in line with other such payments in the USA; they were retrospectively authorised.

The time limit

The applications were made well outside the s54(3) time limit and the applicants asked the court to exercise its discretion, relying on the decision of Sir James Munby, President, in Re X (A Child) (Surrogacy: Time Limit) [2015] 1 FLR 349.

The court found that the applicants had acted with integrity throughout. They had been careful and organised and had taken legal advice in the USA about how they could acquire legal parentage in that jurisdiction and had understood that would be recognised elsewhere; crucially they thought it would be recognised in Denmark. It was a reasonable oversight that they had been unaware of the need to seek parental orders in this jurisdiction, given that they were not at that time living in the UK and had not taken legal advice from a UK based solicitor.

The time limit should not be applied as a straitjacket to prevent the court making orders that were plainly in the children's best interests. In approving the parental orders the court had regard to the checklist at s1 of the Adoption and Children Act 2002. Looking at the children's welfare from a lifelong perspective the court was satisfied that each child needed a parental order to give permanence and security to their care arrangements.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII