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Z and Y (Leave to Withdraw Application for a Parental Order) [2019] EWFC 43

In this short judgment Mrs Justice Theis granted permission for the applicants to withdraw their application for a parental order under section 54 Human Fertilisation and Embryology Act 2008 (HFEA 2008). The children’s guardian recommended that the court did not make the parental order initially sought by the applicants due to the absence of certain information required under s.54 HFEA. It was not possible to obtain this information from the applicants as they had stopped engaging with the court proceedings.

The applicants, Mr Z and Mrs Y, made an application in April 2019 for parental orders in respect of their two children, who were born following a surrogacy arrangement entered into in Country A. The applicants and the children are all British Citizens. The children obtained their British citizenship through Mr Z, as the surrogate was unmarried at the time of their birth.

In January 2019, following several earlier directions hearings, the applicants filed a statement setting out the evidence they relied upon to satisfy the criteria for a parental order under s.54 HFEA 2008. At a hearing in March 2019 the court directed the applicants to file further evidence concerning two of the s.54 criteria; the consent of the surrogate; and the payments made by the applicants (if they were expenses reasonably incurred).

In March 2019 the applicants sent an email to the court and the parental reporter. They felt that the court should have made the parental order on the basis of the evidence already provided and as such they did not wish to continue with their application. The parental reporter sought to re-engage the applicants but he was not able to do so.

At the next hearing the court joined the children as parties and appointed the parental reporter as the Children's Guardian. A further report was ordered from the Children's Guardian and a hearing listed on 18 June 2019.

On 1 June the applicants emailed the court and the Children's Guardian. They maintained their earlier decision and sought to withdraw their application for parental orders. In light of this the further report of the Children's Guardian recommended that without the information the court required under s.54 HFEA the court should not make the parental orders sought.

Theis J considered that there were four options available to the court in this unusual situation:

1. To adjourn the application to a fixed date and encourage the applicants to participate;

2. To adjourn the application generally with liberty to restore;

3. To make the parental order; or

4. To give leave for the applicants to withdraw their application

Theis J reiterated that when considering the application for parental orders the court must consider whether the criteria under s.54 HFEA are satisfied and have regard to the lifelong welfare needs of the child.  In this matter the court was in a difficult position because outstanding information was required to find that the s.54 criteria were met, but there were powerful considerations that pointed towards a parental order being made to provide the children with lifelong security of legal status with the applicants.

Theis J considered all of the four options and concluded that the court should give permission for the application for the parental order to be withdrawn for the following reasons:

1. There was no evidence the applicants would change their mind about engaging with the proceedings;

2. There remained evidential gaps in fulfilment of the s.54 criteria and therefore a parental order could not be granted unless the applicants were to re-engage; and

3. If permission for the application to be withdrawn were granted, the applicants could make a further application at a later date. Even without a parental order the applicants remained the children's legal parents by virtue of the child arrangements order, and with an order under s.4 Children Act 1989, both applicants would also have parental responsibility, which would secure the children's welfare.

Theis J concluded by reiterating that the applicants need to be aware of the limitations on their legal relationship with the children as a result of their decision not to proceed with their application for a parental order.

Summary by Imogen Lloyd-Thomas, barrister, 1 King's Bench Walk

Z and Y (Leave to Withdraw Application for a Parental Order) [2019] EWFC 43 on BAILII