New case law conceived in respect of parental orders

A highly anticipated written opinion from Lady Carmichael has now been published.  This judgement, in relation to the combined cases of HFE1/23 and HFE2/23, was regarding the basis on which Lady Carmichael was willing to accept applications for parental orders, were competent. This is despite failing to satisfy the terms of s54 of the Human Fertilisation and Embryology Act 2008, (HFEA).

The Petitioners in the case, known as AB and XY, had previously been in a romantic relationship.  AB was told she would not be able to conceive so her sister, Z, agreed to be a surrogate.  G and H (non-identical twins) were born to Z in 2021 through artificial insemination using XY’s gametes. 

Afterwards, AB and YX brought applications for parental orders under the HFEA 2008 in respect of both of the children.  Although the parental orders were granted, their justification was hotly anticipated by practitioners on the basis that the factual matrix of the case appeared to fail to meet a number of the criteria set out in s54 of the Act.  In particular:

1. The legislation sets out that such applications must be made within six months of the birth of the child.  These particular applications were made 21 months after the children were born.
2. The applicants must be living as (a) husband and wife, (b) civil partners or (c) two persons who are living as parents in an enduring family relationship and are not within prohibited degrees of relationship to each other.  Unfortunately, the applicants had separated and were no longer living together in the same household.  
3. At the time of the application and making of the order, the child’s home must be with the applicants.  On the basis that the parties had separated and were no longer living together, they no longer all lived together under one roof. 

So, the above criteria were not met, but the applications for parental orders were granted anyway. How?

The court was of the view that, in drafting the legislation, Parliament had not intended that no order could be granted if the six-month period had expired.  And, whilst it is desirable that such applications be made promptly, that requires to be balanced with “the circumstances of the particular case and the consequences of an order being made”.   The court highlighted that instead of requiring adherence to the six-month deadline, what is required is an “unambiguous intention to create and maintain family life, and secondly, a factual matrix consistent with that intention”.  The court was of the view that given the factual circumstances of the case, which spoke to such an unambiguous intention, the failure to meet the six-month deadline was not fatal. 

The petitioners separated amicably in February 2022.  Despite this separation, the applicants described themselves as co-parenting, with XY attending AB’s house (where the children resided with her) most days.  XY remained fully involved in the children's care – including feeding, bathing them, and putting them both to bed.  XY currently resides across the road from AB in AB’s mother’s house.  It was on a combination of these facts, that the court was satisfied that, “They remain in an affectionate and committed relationship, and are committed to co-parenting the children.”

The court was also satisfied that the children had their home with both applicants and no with anyone else. 

Therefore, having satisfied the criteria of s54 of the HFEA, the parental orders were granted.  This will be seen as positive news for many who work in the field.  It provides greater flexibility than the Act would otherwise suggest it allows for – which is always important when working with families which are rarely (if ever!) straightforward.