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Re X [2020] EWFC 39

This is a decision in an application for a parental order concerning a young child, X, who was born to a domestic surrogacy arrangement entered into between the applicants, Mr and Mrs Y, and the respondents, Mr and Mrs Z, who fully supported the application. Mr Y died prior to X’s birth.

Brief Facts
Mr and Mrs Y, had experienced an emotional and difficult journey to fulfil their wish to have a family of their own. X, a long awaited child, was born by a domestic surrogacy arrangement with Mr and Mrs Z. All of the evidence in this case pointed to the deep and strong relationship that had developed between the parties, underpinned by their shared goal for a child to be conceived, carried by Mrs Z and born safely. Tragically, and without warning, Mr Y died when Mrs Z was five months pregnant. Mrs Y was present at X's birth and X has been in her care since then. Mrs Y brought this application for a parental order within 6 months' of X's birth and jointly on behalf of herself and her late husband. Mrs Y's statement set out the significance both for her and X of the parental order being made. At an earlier hearing, the Court directed a report from Cafcass and skeleton arguments by all parties. Cafcass Legal accepted an invitation to act as advocate to the Court.

Legal Framework
Theis J set out the legal framework in the body of her judgment, including the following:

• Section 54 of HFEA

• Section 1 Adoption and Children Act 2020 (ACA) (Human Fertilisation and Embryology (Parental Orders) Regulations 2018 (SI2018/1412)

• Section 3 Human Rights Act 1998 (HRA)

• Section 4 of HRA, in relation to declarations of incompatibility

• Article 8 & 14 of the Convention rights engaged in this case are Articles 8 and 14

• Ghaidan v Godin-Mendoza [2004] All ER (D) 210, in respect of the effect of section 3 HRA (in particular paras 26-30 of Lord Nicholls' judgment)

In the context of an application for a parental order and the requirements under s 54, Theis J considered a number of cases which have considered the extent to which s 3 HRA enables the court to 'read down' the requirements, so they are compatible with Convention rights, including:

• A v P [2011] EWHC 1738 (Fam) – in which Theis J 'read down' the requirement in s 54 (4) (a) and (5) to enable a parental order to be made where the intended father had died unexpectedly after the application was issued, but before the parental order was made.

• Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam) - Munby P considered the six-month time limit in s 54 (3), and decided, for the reasons he set out at paragraphs 53 – 56, that s 54 (3) did not have the effect of preventing the court making an order merely because the application is made at the expiration of the six month period.

• Re Z [2015] EWFC 73 – A single father asked the court to 'read down' s 54 (1) as if the reference to 'two applicants' was in fact a reference to 'one or two applicants'. Munby P refused to do that as, in his judgment, such a course would offend against a fundamental feature of the legislation. In the circumstances set out in Re Z Munby P rejected the argument that it was open to him to 'read down' s 54 (1) in the way sought on the basis that the very clear Parliamentary intent to exclude single applicants for a parental order was a prominent and longstanding feature of the legislation, and that the possibility of amending this had been specifically considered and excluded.

The extent to which the court needed to satisfy itself that Mrs Y, acting as executor of Mr Y's estate, had locus to issue an application for a parental order on his behalf was raised.
If she has locus then she stands in her own right as one of the applicants and as Mr Y's executor she stands in his shoes as the second applicant. In those circumstances the condition for two applicants is met under s.54 (1) HFEA, although the court would still need to be satisfied that the remaining requirements in s.54(1) are met. To that end Theis J considered s.1 Law Reform (Miscellaneous Provisions) Act 1934 (LR(MP)A), and referred to the case of A v P Theis J, in circumstances where the intended father had died after the application for a parental order had been issued. The conclusion is A v P case concluded that an application for a parental order in those circumstances was a cause of action that properly fell within s 1 LR(MP)A. Here, the question was whether Mr Y, at the time of his death, had a cause of action vested in him to apply for a parental order in relation to his unborn child. Consideration was given to further caselaw, including Harb v Aziz (No 2) [2005] EWCA Civ 1324, Sugden v Sugden [1957] P 120, Read v Brown (1888) 22 QBD 128, CA, Letang v Cooper [1965] 1 QB 232, Kelly v Kelly and Brown (Westminster Bank Ltd intervening) [1961] P 94.

Submissions

The applicant and the Guardian, on behalf of the child, invited the Court to read down the following: (i) the requirements for two applicants, per section 54(1); (ii) the status of the applicants' relationship, per s54(2)(a); (iii) the requirement for the child to have her home with the applicants at the time of the application and the making of the order, per section 54(4)(a); and, (iv) for the applicant's to be over the age of 18 at the time of the making of the order, per s54(5). An agreed document was submitted, and the advocate to the Court did not take any significant issue with it. A further route to navigate s.1 LR(MP)A, if necessary, was submitted by the Guardian's advocate.

This approach was justified in the following way:

(1) It permits the court to make an order by reference to the HFEA, read through the HRA 1998 lens.

(2) It avoids the court having to consider whether s.1 LR(MP)A enables the applicant Mrs Y to bring a claim on behalf of Mr Y's estate, or whether the right to apply for a parental orders 'vests' before the child in question is born.

(3) This route confines the wider implications of the Court's decision to similar surrogacy situations thereby avoiding the issues that may arise on other potential claims under s.1 LR(MP)A.

(4) Following such a course is justified and proportionate, recognising the unique significance of parental orders, highlighted by Munby P in Re X [2014] EWHC (para 54) thereby recognising the rights engaged under Articles 8 and 14.

(5) It means the applicants can remain as they are now, without the need for Mrs Y to be acting as executor to Mr Y's estate.

(6) In the event the court accepts these submissions the child's birth certificate should record, in accordance with the relevant regulations, the fact that Mr Y died.

The following was relied upon in support of their submissions:

(a) The history of the legislation: paras 63-68.

(b) The provisions in HFEA 2008 where legal parenthood status is acquired from the date of transfer of the embryo or artificial insemination: paras 69-72.

(c) Provisions s 39 – 40 HFEA which provide for recording fathers on the birth certificates where the embryo transfer or artificial insemination takes place posthumously: para 73-76.

(d) The General Register Office (GRO) have confirmed that if a biological father dies after conception but prior to birth of the child and the mother and father are married, when the child is registered the birth certificate would state the father's name in space 4, occupation in space 6 and deceased would follow in brackets. If the parents were not married the mother would need to seek a declaration of parentage to allow for the father to then be recorded in the birth entry. If a parental order is made X's birth certificate can be issued in accordance with that of any other child of a deceased father. In this case recording Mr Y's name in space 4 and recording 'deceased' next to his occupation in space 6: paras 78-81.

In the event the Court held the view that it needed to consider s.1 LR(MP)A the summary route the Court was invited to take is set out at paragraph 84 of the judgment.

Discussion

Theis J notes the limits on the Court's power to read statutory provision through the s.3 HRA lens, even in a case with such compelling facts as these, and further states that when that limit is reached there is the alternative remedy; the power to make a declaration of incompatibility under s 4 HRA, which affords Parliament the opportunity to amend the relevant provision.

Theis J then states that which side of the s.3 dividing line a particular case falls on was clarified by Lord Nicolls in Ghaidan when he identified that any meaning imported by s.3 'must be compatible with the underlying thrust of the legislation being construed' or in the words of Lord Rodger the words implied must 'go with the grain of the legislation'.

Theis J concluded that both Articles 8 and 14 are engaged in this case, namely that (i) the State has a responsibility to ensure that it respects X's right to a private life and that extends to ensuring she is provided with recognition of her identity as the child of her deceased father, and, (ii) s per D, G v ED, DD, A, B [2015] EWHC 911 (Fam) Article 8 rights include 'the right to adequate legal recognition of biological and social ties'. Article 14 is also engaged on the grounds that X's Convention rights should be secured without discrimination of any ground, including birth or other status. Here X is not able, without a parental order being made, to have a birth certificate that reflects the relationship and connection that she has with Mr and Mrs Y as her parents, solely by virtue of the circumstances of her birth through surrogacy.

Having established those rights, Theis J considers whether those rights are interfered with, concluding that they are, and whether such interference is justified and proportionate. Her Ladyship then asks whether Parliament can have intended that in circumstances such as this, where the intended father dies after the embryo transfer but before the child's birth that, adopting the words of Munby P in Re X paragraph 55, the 'gate should be barred forever.' Her Ladyship concludes not, for several reasons:

(1) Parliament has not explained its thinking why such a situation is excluded. There is no reason to believe Parliament either foresaw or intended the potential injustice which would result in this case if a parental order cannot be made in the circumstances in this case.

(2) Other provisions in the HFEA 2008 (ss 35 – 37) provide clarity about the status of the father of the child born as a result of assisted conception at the time when the embryo is transferred, or artificial insemination takes place, provided certain safeguards are in place, in particular consent. Consent is not an issue in this case, any consent required by s 54 is present and secure.

(3) The provisions set out in ss 39 and 49 HFEA provide clarity as to the status of the father in the circumstances of sub-paragraph (2) where they take place after his death, again with safeguards in place relating to consent.

(4) Parliament has recently, when considering the declaration of incompatibility made by the court in Re Z (No 2), signalled that it seeks to ensure that the law does not discriminate against different categories of applicants for parental orders on the grounds of relationship status.

(5) A parental order is the only route by which X can have her status regarding Mr and Mrs Y recognised in a way that was intended by the surrogacy arrangement, which a parental order was specifically created for.

Theis J then considered that this conclusion is equally justified having regard to the Convention rights involved for the following reasons:

(1) Both Articles 8 and 14 are engaged.

(2) X certainly has an established 'private life' right for her own identity to be protected by legal recognition of her relationship with Mr Y.

(3) Although the Court has concluded that Parliament cannot have intended that a child in X's position would be excluded from such recognition, without the 'reading down' required by s 3 the provisions s 54 (1), (2) (a) (4) (a) and (5) could prevent a parental order being made.

(4) Such reading down as the Court was asked to do, does not go against the 'grain of the legislation', on the contrary it seeks to provide the order that it is accepted best meets a child born as a result of this type of arrangement. The parental order was specifically created for a child born as a result of a surrogacy arrangement, such as in this case.

(5) No alternative order that can properly and accurately to reflect X's identity, including her relationship with Mr Y.

(6) For X her connection with her biological father would be safeguarded in any other birth circumstances naturally or by way of assisted conception, consequently it is discriminatory for the circumstances of her birth to prevent this. A failure of the law to recognise her connection with her biological father as the result of her birth through a surrogacy arrangement amounts to a breach of her Article 14 right to enjoy her Article 8 rights without discrimination on the grounds of birth.

(7) Mrs Y's article 14 rights are also engaged. She is discriminated against based on her relationship status as a widow, rather than being married.

(8) The consequences of not making a parental order in this case is that there is no legal relationship between X and her biological father; X is denied the social and emotional benefits of recognition of that relationship; X may be financially disadvantaged if there is not legal recognition as the child of her biological father; X does not have a legal reality that matches the day-to-day reality; X is further disadvantaged by the death of her biological father.

(9) The only order that will confer joint and equal parenthood on Mr and Mrs Y is a parental order. Only that order will ensure X's security and identity in a lifelong way respecting both her Article 8 and 14 rights.

The Court was therefore satisfied that the relevant provisions, s 54 (1), (2) (a), (4) (a) and (5), could be read down in this case to permit the parental order to be made and that this would not be incompatible with the 'underlying thrust of the legislation being construed' and the words sought to be implied 'go with the grain of the legislation'.

Theis J concludes by saying:

'The HFEA sought to provide a comprehensive legal framework for those undertaking assisted conception, with the aim of securing the rights of any child born as a result. That policy and legislative aim remains intact if the order sought in this case is made.'

In the light of the above conclusion about reading down s.54 HFEA it was not necessary for the Court to go on and consider the submissions in relation to s.1 LR(MP)A.

Summary by Emily Ward, Barrister and Deputy Head of Family at Broadway House Chambers

Read the full judgment of  X, Re [2020] EWFC 39 on BAILLI