18 OCT 2017

Is it too late to change your mind if you decided against applying for a parental order when your child was born?

Is it too late to change your mind if you decided against applying for a parental order when your child was born?
Lauren Sherlock
Natalie Gamble Associates

Family Justice Reformed (second edition: June 2017) contains detailed commentary on the Single Family Court and the Children and Families Act 2014, Pts 1 and 2 (which deal with family justice), including clear and comprehensive guidance on the underlying procedural regime and the rationale for the reforms.

In the case of Re B (Foreign Surrogacy) [2016] EWFC 77, High Court judge Mrs Justice Theis made a parental order in respect of a child born following a surrogacy arrangement in India in 2010 – six years after the usual six month deadline, and notwithstanding that the parents had previously decided against applying.

After returning home to the UK after their daughter’s birth in India, the parents had initially planned to apply for a parental order, and Mr B drafted the consent documents in preparation. These were signed by the Indian surrogate and her husband on 20 August 2010, showing their consent to the granting of a parental order. However, the parents later changed their minds about pursuing their UK court application, deciding that the costs for legal representation were too high, and fearing their parental order application might not be successful and their daughter might be removed from their care.

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Six years later, the parents discovered the decision of Sir James Munby (President of the Family Division) in Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135, [2015] 1 FLR 349 – the first case to allow a late application. In light of this, the parents decided to revive their application.

The case was not without challenges. The first concerned difficulties with serving the surrogate and her husband with the application and acknowledgment of service, years after the surrogacy arrangement. With the help of their solicitor and clinic, the applicants were able to identify an address for the respondents in Nepal and so these forms were sent to this address by air mail. Theis J was satisfied that there had been ‘effective service’ and that there was nothing to suggest that the respondents did not consent to the application.

The second hurdle was that the court had to be satisfied that the child had her home with the applicants, both at the time of the application and at the time of the hearing. Sadly, her parents had separated during the course of the application and the child’s father no longer lived in the family home, although continued to visit and spend time with her there. Upon reviewing the facts and childcare arrangements, the court was satisfied that family life still existed.

The third and final hurdle concerned the six month application deadline. Following Re X [2014], the court had to consider, on the facts of the case, whether to allow the application irrespective of the fact that it had been issued outside the statutory time limit. Theis J highlighted that this application was different to all others previously allowed to be made late, where the parents had been unaware that they needed to apply for a parental order. In this case, this parents knew of the parental order in 2010 and positively decided not to apply. The court held that on the basis that the parents did not fully understand the need for a parental order (and the fact that the law on parental orders in 2010 was new and the circumstances for granting parental orders were still being explored by the courts), their application should be allowed to proceed. Theis J held that the parents had acted in good faith throughout their surrogacy journey, and that it was in their daughter’s best interests for a parental order to be made to protect her ‘lifelong welfare needs’. If a parental order was not granted, and the surrogate (and her spouse) remained the legal parents, that was ‘far from satisfactory’.

The case shows that it is never too late to apply to become legal parents in the UK if you have a child born through surrogacy overseas. Although applications should normally be made within six months of the birth (and dealing with the legal requirements and the evidence will be much easier if you apply in time) it is never too late. Having been involved in international surrogacy cases since the very first in 2008, we know that many parents with children born overseas, particularly in the early days, chose not to apply to resolve their parenthood in the UK, instead deciding to stay under the radar in the hope that their lack of legal status would never been exposed. As international surrogacy has become more commonplace, there is more understanding of the benefits of getting a parental order (and the risks of not doing so). Parental orders are now a well-trodden path, with no cases where an order has not been made (and certainly no cases where a child has been taken away from the parents). The parents in Re B will probably not be the last to decide to sort out their family’s legal status long after the event.

Re B is also a clear example of the perils of surrogacy law which leaves children in legal limbo. What we need is a legal structure for surrogacy which recognises the right people as the parents immediately from birth, so that no children are left with unresolved status. Please do take a look at Natalie Gamble Associates/Brilliant Beginnings campaign for UK surrogacy law reform online, and if you would like to help, please do sign the petition which you can access here.

The original version of this article was published by Natalie Gamble Associates

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