Family Law

"To lose one parent may be regarded as a misfortune... to lose both seems like carelessness".

So observed Lady Augusta Bracknell in Oscar Wilde's The Importance of Being Earnest (1895), on hearing of the death of Mr Worthing's parents.

Death inevitably separates children from their parents. Even then, the legal ties between most parents and children live on. For children born to parents in the usual  way - meaning most common as opposed to being a value judgement - that family relationship will be forever.

But the same is not always true in alternative family structures. For children born through surrogacy arrangements, or else placed with parents via adoption, the legal ties created between parent and child can sometimes (albeit rarely) be unmade.

It was an application to unmake a family that came before Mr Justice Hedley in the recent case of G -v- G [2012] EWHC 1979 (Fam). That case concerned a boy, D. He was born in January 2011 as a result of a surrogacy agreement between commissioning parents, Mr and Mrs G, and a surrogate mother. Mr G's sperm had been used in the arrangement, so he was biologically the child's father. Although the child's father genetically, Mr G was not legally his father at birth. The commissioning parents sought a parental order, and one was made in May 2011. This made Mr and Mrs G legally the boy's parents, and severed his legal relationship with his birth mother. Unfortunately, the relationship between Mr and Mrs G broke down, and they separated in September 2011. After the separation, D lived with Mrs G and had contact with Mr G.

Mr G then applied to have the parental order set aside. His application relied on procedural irregularities and oversights in the process that culminated in the original order. Whilst procedural impropriety was the focus of his application, it was motivated by his belief he had been duped. He maintained Mrs G had intended to separate from him all along, but did not reveal her intention until after the parental order was made to ensure the process went smoothly. His application prayed in aid the fact that the surrogate mother would not have consented to a parental order unless D were joining what she considered to be a "functional family".

The application was a novel one. Hedley J observed that the Human Fertilisation and Embryology Act 2008 did not give a court the power the set aside a parental order. Nor was there any case law suggesting that such a course was open. On balance, however, the Judge took the view that a parental order could theoretically be set aside on the basis of:

• mistake;
• relevant deception or non-disclosure, and / or
• procedural irregularity

(in other words, where required by natural justice).

He reached this conclusion by looking at analogous adoption decisions.

Having found that the power theoretically existed, Mr Justice Hedley declined to exercise it in D's case. The bar to set aside an adoption order (and therefore, by analogy, a parental order) was a very high one. The facts here did not go far enough.

He said: 

"Like an adoption a parental order both confers lifelong status on the applicant and deprives those who until then had parental status of that status on a lifelong basis." 

The Judge took the view that, at the time the parental order was granted, "all were seeking that Mr and Mrs G should have the status of lifelong parents, even if they were likely to separate."

Crucially, to set aside the order was not in D's interests. Hedley J said: 

"I do not believe that a revocation of this order is consistent with D's welfare, indeed if anything it conduces against it... Mrs G is the only mother that he has known and his welfare will be undermined if she is deposed from that role."

Hedley J's Judgment cited and drew upon the four following adoption decisions, where application was made to set aside final adoption orders: 

• Re B (Adoption: Setting Aside) [1995] 1 FLR 1

An application was made in the 1990s to set aside an order made in 1959. The basis for the application was that the adoptive parents had been led wrongly to believe the child's birth parents were Jewish, and hence the child was Jewish by heritage. The application was refused. The passage of time, amongst others, was a factor in the decision.

• Re M (Minors)(Adoption) [1991] 1 FLR 458

An adoption order had been made in favour of the mother's new husband (the children's stepfather). The biological father had consented to the application, not knowing that the mother was terminally ill with cancer at the time. She died shortly after the adoption order was made. On the father's application, the court set aside the order, finding the father's ignorance of the mother's illness vitiated his agreement. Absent that agreement, the orders would probably not have been made. Further, the children had been reunited with the father, and now lived with him. It was in their interests that the order be set aside.

• Re K (Adoption and Wardship) [1997] 2 FLR 221

The child was a Bosnian national rescued during the conflict there in the 1990s. The adoptive parents sought and obtained an adoption order, despite knowing that members of the child's family had been traced following the end of hostilities in Bosnia and Herzegovina. On account of this and other procedural irregularities, it was found the adoption order could not stand. It amounted to a denial of natural justice to the child's birth family and must be set aside.

• Webster -v- Norfolk County Council and the Children (by their Children's Guardian) [2009] 1 FLR 1378

Three children had been removed from their birth parents' care and subsequently adopted. This followed a decision in care proceedings that injuries the children suffered were non-accidental. Years later, fresh expert evidence cast serious doubt on that decision, and the birth parents sought to appeal the adoption orders. Their application was refused, even having regard for the possibility they had suffered a serious injustice.

So where does this leave the relationships between parents and any children who join their family through surrogacy or adoption?  In the vast majority of cases, their legal status will be identical to children who are family members from birth. So long as the parental or adoption orders are properly and lawfully made, the relationships created will endure throughout life, and beyond. The social importance of not undermining such life changing decisions as making children part of a family requires nothing less.

As the decisions identified above show, however, there remain a very small cluster of highly exceptional cases to which that general proposition does not apply. For understandable reasons, where orders have been set aside, courts have been keen to ring-fence their decisions to the particular facts, and make it plain they are not setting a general precedent about when orders will be susceptible to challenge. But lawyers thrive on teasing precedents from Judgments even (especially?) when the Judges giving them are adamant there are none to be found. With this in mind, I offer up the following food for thought:

• a family situation will need to be exceptional on its facts before the prospect of a final order being set aside is even within contemplation;
• timing is critical - the passage of time means an order that might once have been susceptible to being set aside no longer is;
• the timing point mentioned ties in with the welfare interests of the particular child. The longer a child spends living with the family he or she has joined, the more anathematic to welfare the unmaking of that family will be. But is welfare paramount? These decisions are not directly governed by section 1(1) of the Children Act 1989, so I would venture not. I suggest the welfare of the individual child is an important consideration, but not the paramount one;
• it is possible to imagine situations (such as in Re K) where natural justice is so offended in the adoption or parental order process that, even if time has passed and the child's welfare suggests it is not the right outcome, the setting aside of the order is the ethical conclusion.

We live in interesting times as far as alternative families are concerned. Barely a week passes without a reported court decision, legislation or news of a government initiative or consultation, that affects them. I predict we will see more of the extremely narrow band of situations where a parental and adoption orders are susceptible to being set aside.

Duncan Ranton is a Senior Associate at Russell Jones & Walker (part of Slater & Gordon Lawyers), part of the specialist childcare team based in the London office. 

He works exclusively in the field of family law, and with a particular emphasis on cases involving children. His expertise ranges from domestic cases involving disputes as to residence, contact and/or the attribution and exercise of parental responsibility all the way through to transnational cases that have raise extremely complex issues of private international law. 

Duncan is dual qualified in Australia, and is a member of Resolution's International Committee.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.