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‘Reading down’ the statute: The case of Re: A (Surrogacy: s.54 Criteria) [2020]

Thursday 23 July 2020

Mai-Ling Savage leading Stephen Lue, both of the Garden Court Chambers Family Team, acted for the father. Rachel Schon was the the third six pupil in this case.

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In Re: A (Surrogacy: s.54 Criteria) [2020] EWHC 1426 (Fam) Mr Justice Keehan granted an application for a parental order in a case where a child had been conceived using surrogacy. The case was notable as it required the court to ‘read down’ a number of the statutory criteria contained in section 54 of the Human Fertilisation and Embryology Act 2008.

The criteria at issue were the requirement that the application be made within 6 months of the birth of the child; the requirement that the applicants be ‘living together as partners in an enduring family relationship’ and finally that at the time of the application and the making of the order, ‘the child’s home must be with the applicants’. While there had been previous cases where parental orders had been made in circumstances where one or two of these criteria had presented difficulties, this case was different in that all three of these requirements were not straightforwardly met on the facts of the case.

Mai-Ling Savage leading Stephen Lue, both of Garden Court, acted for the father in circumstances where the application was made out of time, the applicant parents were no longer in a relationship and the father had had only minimal and indirect contact with the child. 

The background to the case was that while the child was conceived artificially using the gametes of both applicants, the couple had separated during the pregnancy and the father had originally not wished to have further contact with the child. While the mother had made a first application for a parental order soon after the birth, this application was stayed in August 2017 as at that time the law did not provide for a parental order to be made to a single applicant. The stay was lifted in September 2019 after a change in the law and it then became apparent that the intended father had changed his position and did not wish to relinquish his legal parenthood. In December 2019 the parents made a joint application for a parental order, over two years after the time limit prescribed by the Act. At the time the application was made, the father was having only indirect contact with the child.

The Judge canvassed the case law in this area to distil relevant principles to consider when interpreting the statutory criteria. He held that the court must have regard to the underlying purpose of the legislation and ensure that the interpretation does not ‘go against the grain’ of the intentions of parliament. In addition he noted that section 3 of the Human Rights Act requires the court to interpret legislation in a way that is compliant with the Convention and that the ultimate test for the making of an order is the welfare best interests of the child.

In these circumstances Mr Justice Keehan found that the parents were in an enduring family relationship in respect of their ongoing commitment to the child. He also found that the term ‘home’ must be given a wide and purposive interpretation and that the fact that the application was made out of time could not be a bar to the making of a parental order. Accordingly the order was made.

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