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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 46
HFE1/23
HFE2/23
OPINION OF LADY CARMICHAEL
in Petitions of
AB AND XY
Petitioners
for
orders under section 54 the Human Fertilisation and Embryology Act 2008
Petitioners: Aitken; A C White, solicitors
13 July 2023
[1]
The petitioners, AB and XY, were formerly in a romantic relationship. They wished
to start a family together, but AB was told that she would not be able to conceive. Z, who is
AB's sister, agreed to be a surrogate. She became pregnant in 2020 as the result of artificial
insemination using XY's gametes. G and H, who are non-identical twins, were born in 2021.
AB and XY separated in early 2022. AB and XY brought two applications under section 54
of the Human Fertilisation and Embryology Act 2008, one in respect of G and the other in
respect of H.
[2]
Following a hearing I granted the applications. They raised issues which I was told
have not previously been the subject of a published opinion in Scotland, although very
similar issues have been the subject of published decisions in England and Wales. Counsel
2
and the curator ad litem both indicated that it would be helpful if I were to provide a short
decision in writing explaining the approach I had taken in determining to grant these
applications, and I now do so.
The statutory provisions
[3]
Section 54 of the 2008 Act provides:
"54 Parental orders: two applicants
1(1) On an application made by two people (`the applicants'), the court may make
an order providing for a child to be treated in law as the child of the applicants
if--
(a)
the child has been carried by a woman who is not one of the applicants,
as a result of the placing in her of an embryo or sperm and eggs or her
artificial insemination,
(b)
the gametes of at least one of the applicants were used to bring about
the creation of the embryo, and
(c)
the conditions in subsections (2) to (8A) are satisfied.
(2)
The applicants must be--
(a)
husband and wife,
(b)
civil partners of each other, or
(c)
two persons who are living as partners in an enduring family
relationship and are not within prohibited degrees of relationship in
relation to each other.
(3)
Except in a case falling within subsection (11), the applicants must apply for
the order during the period of 6 months beginning with the day on which the
child is born.
(4)
At the time of the application and the making of the order--
(a)
the child's home must be with the applicants, and
(b)
either or both of the applicants must be domiciled in the United
Kingdom or in the Channel Islands or the Isle of Man.
(5)
At the time of the making of the order both the applicants must have attained
the age of 18.
(6)
The court must be satisfied that both--
(a)
the woman who carried the child, and
(b)
any other person who is a parent of the child but is not one of the
applicants (including any man who is the father by virtue of section 35
or 36 or any woman who is a parent by virtue of section 42 or 43), have
freely, and with full understanding of what is involved, agreed
unconditionally to the making of the order.
(7)
Subsection (6) does not require the agreement of a person who cannot be found
or is incapable of giving agreement; and the agreement of the woman who
3
carried the child is ineffective for the purpose of that subsection if given by
her less than six weeks after the child's birth.
(8)
The court must be satisfied that no money or other benefit (other than for
expenses reasonably incurred) has been given or received by either of the
applicants for or in consideration of--
(a)
the making of the order,
(b)
any agreement required by subsection (6),
(c)
the handing over of the child to the applicants, or
(d)
the making of arrangements with a view to the making of the order,
unless authorised by the court.
(8A) An order relating to the child must not previously have been made under this
section ... unless the order has been quashed or an appeal against the order has
been allowed."
[4]
Section 55 provides that the Secretary of State may make regulations providing
for provisions of enactments relating to adoption, including the Adoption and Children
(Scotland) Act 2007, to have meaning and effect in relations to orders under section 54.
The relevant regulations are the Human Fertilisation and Embryology (Parental Orders)
Regulations 2018. Article 3 and Schedule 2 of the regulations apply parts of the 2007 Act
to applications for parental orders. Of particular importance is the application with
modification of section 40 of the 2007 Act by paragraph 9 of Schedule 2. A person who is
the subject of a parental order is to be treated in law as if born as the child of the person
or persons who obtained the order, and as not being the child of any person other than the
person or persons who obtained the order.
[5]
Paragraph 2 of Schedule 2 applies section 14(1) to (4) and (8) of the 2007 Act with
modification. Paragraph 6 applies section 28 with modification. In coming a decision the
court must regard the need to safeguard and promote the welfare of the child throughout
the child's life as the paramount consideration. It must have regard in particular to
(a)
the value of a stable family unit in the child's development,
(b) the child's ascertainable views regarding the decision (taking account of
the child's age and maturity),
4
(c)
the child's religious persuasion, racial origin and cultural and linguistic
background, and
(d) the likely effect on the child, throughout the child's life, of the making of an
adoption order.
The court must not make a parental order unless it considers that it would be better for the
child that the order be made than not.
The issues
[6]
The following issues arose:
(a)
Section 54(3) provides that the applicants must apply for the order during
the period of 6 months beginning with the day on which the child is born. These
applications were made 21 months after the children were born.
(b) Section 54(2) provides that the applicants must be (a) husband and wife,
(b) civil partners of each other, or (c) two persons who are living as partners in an
enduring family relationship and are not within prohibited degrees of relationship
in relation to each other. The issue was whether, notwithstanding their separation,
the petitioners met the criterion in subsection (c).
(c)
Section 54(4)(a) provides that at the time of the application and at the time of
the making of the order, the child's home must be with the applicants. Again, the
issue was whether I should be satisfied that that requirement was satisfied given the
petitioners' separation.
5
Procedure
[7]
When the applications were lodged, the court administration drew these issues
to my attention, and queried whether a hearing on competency might be required before
determining whether to appoint a curator ad litem and reporting officer. On a preliminary
reading of some of the decided cases from England and Wales I formed the view that it
would probably not be appropriate to consider these issues other than in the context of the
facts of the case, and I appointed a curator ad litem and reporting officer under Rule of
Court 97.8.
[8]
The applications in these petitions were not contested. The curator ad litem and
reporting officer reported in positive terms on the matters that she required to address.
[9]
At a hearing fixed under RCS 97.2(a) I was presented with affidavit evidence.
Counsel relied on jurisprudence from England and Wales, and invited me to follow it.
He pointed out that the issue arising from delay in seeking parental orders could not be
resolved by an application to adopt. The petitioners were not a relevant couple for the
purposes of the 2007 Act: section 29(3).
Jurisprudence from England and Wales
[10]
In Re X (A Child) (Parental Order: Time Limit) Sir James Munby, P, wrote this at
paragraph 54 and following, allowing an application 2 years and 2 months after the birth
of the child:
"54. Section 54 goes to the most fundamental aspects of status and, transcending
even status, to the very identity of the child as a human being: who he is and who
his parents are. It is central to his being, whether as an individual or as a member
of his family. As Ms Isaacs correctly puts it, this case is fundamentally about X's
identity and his relationship with the commissioning parents. Fundamental as
these matters must be to commissioning parents they are, if anything, even
more fundamental to the child. A parental order has, to adopt Theis J's powerful
6
expression, a transformative effect, not just in its effect on the child's legal
relationships with the surrogate and commissioning parents but also, to adopt
the guardian's words in the present case, in relation to the practical and
psychological realities of X's identity. A parental order, like an adoption order,
has an effect extending far beyond the merely legal. It has the most profound
personal, emotional, psychological, social and, it may be in some cases, cultural
and religious, consequences. It creates what Thorpe LJ in In re J (A Minor) (Adoption:
Non-Patrial) [1998] INLR 424, 429, referred to as `the psychological relationship of
parent and child with all its far reaching manifestations and consequences'.
Moreover, these consequences are lifelong and, for all practical purposes,
irreversible: see G v G (Parental Order: Revocation) [2013] 1 FLR 286, to which I have
already referred. And the court considering an application for a parental order is
required to treat the child's welfare throughout his life as paramount: see In re L
(A Child) (Parental Order: Foreign Surrogacy) [2011] Fam 106. X was born in
December 2011, so his expectation of life must extend well beyond the next 75 years.
Parliament has therefore required the judge considering an application for a parental
order to look into a distant future.
55. Where in the light of all this does the six-month period specified in section 54(3)
stand? Can Parliament really have intended that the gate should be barred forever if
the application for a parental order is lodged even one day late? I cannot think so."
[11]
In Re X the court also concluded that the effect of reading down section 54(3) so
as to achieve consistency with the rights of the child to family and private life protected by
Article 8 ECHR would lead to the same result, referring to the approach of Theis J in A v
whether the child's home was with the applicants when they had separated at the time of
the application and were living in different houses. In circumstances where the child did
not have his home with anyone else and his living arrangements were split between the
applicants, the court concluded that the child's home was with them at the material time.
Again, that reading was consistent with there being family life as contemplated by Article 8,
[12]
Courts in England and Wales have followed the approach in Re X on a number of
in which the application was made outwith the 6 month time limit, and the applicants had
7
separated, and in which the court was satisfied it should make the orders sought. Keehan J
surveyed a number of relevant authorities, including A v P and In Re X. His summary of the
propositions to be drawn from them is as follows:
"54. In light of the various authorities ... I must apply the following principles when
considering whether or not the statutory criteria are satisfied on the facts of this case
and whether I should make a parental order in favour of the applicants:
i)
when interpreting legislative provisions, the court must have regard to
the underlying purpose of the requirement and ensure the interpretation does
not `go against the grain' of the intentions of Parliament;
ii)
s.3 of the HRA requires the court, where possible, to give a Convention
compliant interpretation of statutory provisions;
iii)
a failure to adhere to the six-month time limit to make an application for
a parental order is not fatal to the making of the order;
iv)
the questions whether the applicants are in an enduring family
relationship and whether the child has his home with the applicants are matters
of fact for the court to determine;
v)
where the court finds that the Article 8 and/or Article 14 rights of the
child are engaged, the biological and social reality of the child's life must
prevail over legal presumption;
vi)
the existence of family life is not defined nor is its existence constrained
by legal, societal or religious conventions;
vii)
there are no minimum requirements that must be shown if family life is
to be held to exist;
viii)
what is required is an unambiguous intention to create and maintain
family life, and secondly, a factual matrix consistent with that intention which
is clearly a question of fact and degree;
ix)
the mere fact that the parents are now separated is not fatal to the
application for a parental order;
x)
similarly, the mere fact that the parents live in separate homes is not
fatal to the application;
xi)
if a parental order is not made, the child is likely to be denied the social
and emotional benefits of recognition of his relationship with his parents and
would not have the legal reality that matches his day to day reality;
xii)
the transformative effect of a parental order cannot be overstated; and
xiii)
the ultimate test for the making of a parental order is the welfare best
interests of the child."
[13]
domiciled in the United Kingdom who made a surrogacy arrangement with a couple
domiciled in the United States of America, resulting in the birth of a child in 1998. A court
in the United States made an order declaring the applicants to be the child's parents and all
8
concerned conducted their lives on the basis that the legal position in the United States
was reflected in the United Kingdom. When they realised that it was not, the made an
application under section 54 of the 2008 Act. Theis J granted the application. Theis J
considered submissions focussing on two aspects of the rights protected by Article 8, namely
family life and identity rights: paragraph 27. Although the "child" was by the time of the
application an adult, Theis J concluded that the requirement of section 54(4)(a) was satisfied
where the parties' lives had remained as one family unit through the close relationships they
enjoyed, and their close contact remained even when they were apart. She described their
family lives as entwined and inextricably linked. Their Article 8 rights were engaged,
and pointed towards the court's seeking to be in a position to secure the legal parental
relationship so that those rights could be properly and effectively exercised.
[14]
in a platonic relationship who became parents through an organised surrogacy agreement.
Mr X met Mr Y when Mr X was temporarily separated from his wife. After a brief romantic
relationship Mr X and Mr Y formed a close and loving platonic bond, which endured when
Mr X reunited with his wife. Mr X and Mr Y decided, with Mrs X's approval, to have a
child together. The child spent time with Mr X and Mr Y together and separately in their
respective homes. Theis J was satisfied that the applicants' relationship was a long
established loving and committed relationship, although unconventional. At paragraph 28
she reviewed a number of decided cases involving a range of circumstances in which courts
had held that a child had his home applicants who did not cohabit, or who did not live with
the children.
[15]
Counsel also drew to my attention AY and BY v ZX [2023] EWFC 39. It relates to
a concern as to whether the court was prevented from making an order under section 54
9
where surrogacy had taken place pursuant to a private arrangement, rather than in a
licensed clinic. Macdonald J found that there was nothing in section 54 that prevented
a court from doing so.
Decision
[16]
So far as section 54(3) is concerned, the question, in construing the statute, is whether
it was the intention of Parliament that no order could be granted in the event that the time
limit of 6 months were not complied with: see, for example R v Soneji [2006] 1 AC 340.
The line of authority referred to above from the courts of England and Wales is highly
persuasive. The 2008 Act extends to England and Wales, Scotland and Northern Ireland.
As Sir James Munby P pointed out in Re X (A Child) (Parental Order: Time Limit), there is
no particular policy consideration which appears to underpin section 54(3) or its
predecessor provision, section 30(2) of the Human Fertilisation and Embryology Act 1990:
paragraphs 16, 17. It is clearly desirable that applications relating to children should be
made and dealt with promptly, but that requires to be balanced with the circumstances
of the particular case and the consequences of an order not being made: X v Z and others,
paragraph 50.
[17]
I agree with the reasoning in the cases from England and Wales to which I have
referred. It cannot have been the intention of Parliament that a failure to apply within
6 months should operate as barring an application, given the consequences for the child if
no competent application were possible. The question of construction must be approached
bearing in mind the character of the order as one which goes to the most fundamental
aspects of status, identity and family and legal relationships. I have approached the matter
primarily as one of statutory construction without reference to section 3 of the Human
10
Rights Act 1998. I do, however, agree with Sir James Munby P that reading down
section 54(3) would lead to the same result.
[18]
The liberal and purposive approach to construction which underlies that approach
to section 54(3) also informs the interpretation and application of section 52(2) and (4)(a).
I adopt the propositions formulated by Keehan J in Re A (A Child) (Surrogacy: s54 criteria).
The following are of importance in the context of the present case. Whether the applicants
are in an enduring family relationship and whether the children have their home with the
applicants are matters of fact. What is required is an unambiguous intention to create and
maintain family life, and secondly, a factual matrix consistent with that intention which is
clearly a question of fact and degree. If a parental order is not made, the children are likely
to be denied the social and emotional benefits of recognition of their relationships with their
parents and would not have the legal reality that matches their day to day reality. A broad
and flexible construction of those provisions should be adopted where that is necessary to
secure the effective protection of the rights protected by Article 8 ECHR.
[19]
Turning to the facts of this case, the children's birth mother, Z, has never viewed the
children as her own. She viewed the pregnancy and subsequent birth as doing a job, and
feels the same way about the children as she does about her other nephews and nieces.
The orders sought reflect the reality of the children's lives and family relationships, and
those of Z, XY and AB. Against that background it is important both that AB should be
recognised as the children's mother, and that she should have parental rights and
responsibilities in respect of them.
[20]
The petitioners did not have any legal advice when they and Z agreed to proceed
with surrogacy. They were primarily concerned with the practical matters surrounding
conception, and how to achieve conception. They were aware that parental orders existed,
11
but not of the time limit. The children were conceived and born during the pandemic.
AB was concerned about going out and about at the time the children were born, in case
she exposed them to a risk of infection. She did not consider it safe to risk meeting with
a lawyer. When XY attended with Z to register the births of the children, he gained the
impression that the petitioners would have to make an application after 6 months had
elapsed, rather than within a 6 month period. When he learned that the application should
have been made within 6 months he felt terrible, as he felt the mistake was his fault. By the
time the petitioners sought legal advice the 6 month period had already ended. Against that
background, I am satisfied that the expiry of the 6 month period should not act as a bar to
my making the orders sought.
[21]
The children are loved, well-cared for and thriving in the care of the petitioners. I
am satisfied that the orders sought will safeguard and promote the welfare of the children
throughout their lives, and that it is better for the children that I make the orders than that
I do not make them.
[22]
The petitioners separated amicably in February 2022. Immediately after their
separation, XY visited AB's house and saw the children there on his days off from work.
At that time he was working 5 days on and 2 days off. He remained fully involved in their
care, including feeding and bathing them, and putting them to bed. He now resides with
AB's mother, across the road from AB's house. He goes to her house on most days. He
usually attends after breakfast and stays until dinner time. Both petitioners describe
themselves as co-parenting. They intend to continue to do so. They plan for XY to
obtain accommodation of his own and to spend time with the children there as well.
He is planning to return to work in his previous career as a chef. I am satisfied that the
petitioners are living as partners in an enduring family relationship. They remain in an
12
affectionate and committed relationship, and are committed to co-parenting the children.
I am satisfied also that the children have their home with them. They do not have their
home with anyone other than the petitioners.
[23]
I was, in the circumstances of these applications, satisfied that all the conditions
imposed by section 54 were met, as were the requirements of the 2007 Act as they apply
in modified form to decisions under the 2008 Act. I therefore granted the applications.
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