H (Step-Parent Adoption: Human Rights), Re
[2023] EWHC 3186 (Fam)
H (Surrogacy: Step-parent adoption), Re
28 November 2023
[2023] EWFC 214
Family Court
Two dads wanted to legally adopt their child born through a surrogate. While they could have used a simpler legal process, they chose adoption to easily get their child Italian citizenship. The judge agreed, deciding it was the best way to protect the child's well-being and allow their family to thrive. The family plans to be open with the child about how they came to be.
Key Facts
- •Step-parent adoption application for H (2 years old) by E, intended parent, following a surrogacy arrangement in Argentina.
- •H was conceived using L's gametes and a known donor egg; R was the gestational surrogate.
- •E and L are in a relationship, seeking to secure E's legal parent status in the UK and Italy.
- •Application supported by L, R, H's Children's Guardian, and the local authority.
- •Primary motivation for step-parent adoption is improved recognition in Italy for EU citizenship.
- •E and L maintain contact with R and the egg donor.
- •Alternative option of a parental order under the HFEA 2008 exists, but step-parent adoption is preferred for recognition in Italy.
- •All necessary preliminary requirements for adoption under the ACA 2002 are met.
Legal Principles
In step-parent adoption cases, the approach of the ECtHR in Söderbäck v Sweden should be applied, considering the degree of interference with Article 8 rights.
Re P (Step-Parent Adoption) [2014] EWCA Civ 1174, Re L (A Child: Step Parent Adoption) [2021] EWCA Civ 801
Step-parent adoption involves a lower degree of interference with Article 8 rights than stranger adoptions; the 'nothing else will do' test does not apply.
Re P (Step-Parent Adoption) [2014] EWCA Civ 1174, Re L (A Child: Step Parent Adoption) [2021] EWCA Civ 801
For adoption orders, the paramount consideration is the child's welfare throughout their life, considering the welfare checklist.
s1(2) and s1(4) ACA 2002
A step-parent adoption order will extinguish the parental responsibility of others except the parent who is the applicant's partner.
s46(3)(b) and s67(2) ACA 2002
There is no statutory obligation to apply for a parental order in surrogacy cases; welfare benefits may justify a different order.
Case discussion
Outcomes
Step-parent adoption order granted in favour of E.
The court found that the step-parent adoption order best secures H's lifelong welfare needs, including her Italian heritage and identity, while acknowledging the established family unit and the consent of all parties.