Z (Surrogacy: Step-parent Adoption), Re
[2024] EWFC 20
A v B & Ors (Wardship; Parental Order; s10(9) Leave Application)
4 July 2023
[2023] EWHC 1680 (Fam)
High Court
Two people had a child together (X). Later, one parent had another child (Y) via surrogacy without the other parent involved. The uninvolved parent tried to become a legal parent of Y, but the court said that wasn't legally possible and it would harm the baby. The court let them drop the attempt, but refused a request to get involved in the baby's life in another way because it would cause more problems.
Key Facts
- •A and B, not in an intimate relationship, jointly planned to have a child via IVF.
- •IVF failed for A; they used a US clinic, donor eggs, and B's gametes, resulting in child X.
- •B had sole legal control of the embryos; A and B co-parent X.
- •B later used a remaining embryo with a new donor and gestational surrogate (Mr and Mrs G), resulting in child Y.
- •A learned of Y's conception accidentally and subsequently applied for wardship of Y and a parental order.
- •Mr and Mrs G did not consent to A's parental order application.
- •A also sought leave under s10(9) Children Act 1989 to apply for a child arrangements order for Y.
Legal Principles
The inherent jurisdiction of the High Court should be invoked exceptionally when statutory frameworks are available.
Family Procedure Rules 2010 (FPR 2010) Practice Direction 12D
Parental orders require satisfaction of criteria in s54 HFEA 2008 and consideration of children's lifelong welfare needs (s1 Adoption and Children Act 2002).
s54 HFEA 2008, s1 Adoption and Children Act 2002
The court may read down s54 HFEA 2008 criteria to comply with Article 8 ECHR (right to family life) if a Convention right is engaged, but this must be compatible with the legislation's underlying thrust (Ghaidan v Godin-Mendoza).
s3 Human Rights Act 1998, Article 8 ECHR, Ghaidan v Godin-Mendoza [2004] 2 AC 557
When considering leave under s10(9) CA 1989, the court considers the nature of the proposed application, applicant's connection to the child, and risk of disruption/harm.
Re B (A Child) [2012] EWCA Civ 737
When considering withdrawal of an application, the court considers the child's welfare.
FPR 2010 r29.4, Ciccone v Ritchie (No 2) [2017] 1 FLR 812
Outcomes
Leave granted to withdraw application for wardship and parental order.
Lack of consent from Mr and Mrs G, and A's application lacked merit and legal foundation; Y's welfare is best served by clarity on the insurmountable legal hurdles.
Application for leave under s10(9) CA 1989 refused.
A's unrealistic application for shared care, lack of recognition of different circumstances of X and Y's conceptions, and risk of harm to Y due to further delay and impact on B as Y's primary carer.